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Legislative
Update

NCPA: MOVE MEDICAL MALPRACTICE OUT OF THE COURTS
NCPA Report Suggests Reform to Benefit Doctors and Patients

December 18, 2007

Media Contacts:

Sean Tuffnell
(972) 308-6481
sean.tuffnell@ncpa.org

Elysa Nelson
(972) 308-6477
elysa.nelson@ncpa.org

DALLAS (December 18, 2007) – The nation’s medical malpractice system should be replaced by a system that automatically compensates patients for unexpected injuries or deaths, regardless of who is at fault, according to a new report from the National Center for Policy Analysis (NCPA).  The NCPA report says the key to reform is to allow patients, doctors and hospital personnel to solve the problem by contract, completely opting out of the court system.

“Medical malpractice is a system of lawyers, by lawyers and for lawyers,” said NCPA Policy Analyst Pam Villarreal, who co-authored the report.  “The needs of patients and the freedom of doctors to practice medicine often get lost in the mountain of litigation.”

The malpractice system is supposed to compensate victims of negligent medical practice for their injuries and discourage future errors by medical providers.  It does both jobs poorly.  Consider that:

  • Fewer than 2 percent of patients (or the families of patients) who are negligently injured ever file a malpractice lawsuit; and even fewer receive compensation.
  • Moreover, of the lawsuits filed, fully one out of every three cases does not involve any medical error.
  • Furthermore, malpractice victims receive less than half of every dollar (46 cents) recovered through settlements or jury verdicts go to the victims; the rest goes to pay their attorneys’ fees, court administrative costs and defense costs.

The current system, according to the report, imposes large costs on doctors.  One in every four physicians is sued every year, and more than half are sued at least once during their career.  To protect against such lawsuits, doctors purchase malpractice insurance, which carry high premiums.  Most of these costs are passed on to all patients. The total cost of the medical tort system is estimated between $129 billion and $207 billion – or as much as $2,000 per year for every household in America.

The report suggests a reformed system should compensate every patient fully who is harmed by a medical error, minimize the cost of determining compensation and encourage health care providers and patients to act in ways that reduce the frequency of errors.  To do this the NCPA suggests replacing the tort-law malpractice system with a system in which liability would be determined by voluntary contract.  These contracts could include:

  • Compensation without fault – set in advance the amount a provider is obligated to compensate the patient (or family of the patient) for in the case of unexpected death, and set compensation for unexpected disability based on the state Worker’s Compensation system.
  • Adjustment for risk – allow the compensation amount to be reduced for the riskier patient or high-risk procedures.
  • Full disclosure – require providers to make certain quality information public, such as mortality rates for surgeries.
  • Patient compliance – base qualification for full compensation on the patient’s compliance with certain provider directives, including diet restrictions, full discloser of medications being taken.

“Instead of buying malpractice insurance, physicians would essentially be purchasing short-term life insurance on all patients, say, undergoing surgery,” said Villarreal.  “Under this system, insurers would have a strong interest in monitoring how doctors practice medicine and would price their policies accordingly.  Bad doctors would largely be priced out of the market.”

The NCPA is an internationally known nonprofit, nonpartisan research institute with offices in Dallas and Washington, D. C. that advocates private solutions to public policy problems.  We depend on the contributions of individuals, corporations and foundations that share our mission. The NCPA accepts no government grants.
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Louisiana Legislature Amended La. Code Civ. P. art. 561

Until July 2007, any pending lawsuit in MM or GL was considered abandoned if the parties failed to take a step in the prosecution or defense before the trial court for a period of three years.  However, there is now an exception to the three year rule as the Louisiana legislature amended La. Code Civ. P. art. 561, effective July 9, 2007.  If a party “proves” that the failure to take a step in the prosecution or defense was caused by or was a direct result of Hurricane Katrina or Rita, an action filed before August 26, 2005 (which had not yet abandoned) is not abandoned until five years after the last formal step before the trial court.  Attached is a copy of LSA-C.C.P. Art. 561 as amended.

 

 

 

West's Louisiana Statutes Annotated Currentness

Louisiana Code of Civil Procedure acts 1960, No. 15 (Refs & Annos)

Book I. Courts, Actions, and Parties

Title II. Actions

Chapter 4. Abandonment of Action

 

Art. 561. Abandonment in trial and appellate court

 

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:

 

(a) Which has been opened;

 

(b) In which an administrator or executor has been appointed; or

 

(c) In which a testament has been probated.

 

(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26,2005, which has not previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years, unless it is a succession proceeding:

 

(a) Which has been opened;

 

(b) In which an admimistrator or executor has been appointed; or

 

(c) In which a testament bas been probated.

 

(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.

 

(4) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff’s service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).

 

LSA-C.C.P. Art. 561

Page 2

 

 

(5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriff’s service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk's mailing of the order of denial.

 

(6) The provisions of Subparagraph (2) of this Paragraph shall become null and void on August 26, 2010.

 

B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

 

C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court.

 

Amended by Acts 1966, No. 36, $1; Acts 1982, No. 186, § 1; Acts 1983, No. 670,G 1; Acts 1987, No. 149, $1; Acts 1997,No. 1221,s 1, eff. July 1, 1998; Acts2003,No. 545, $1; Acts 2007,No. 361, § 1, eff. July 9,2007.

 

DATE EFFECTIVE AND APPLICATION

 

<Section 2 of Acts 1997, No. 1221 (5 1 of which amended this article) provides:>

 

<"Section 2. This Act shall become effective on July 1, 1998, and shall apply to all pending actions.">

 

OFFICIAL REVISION COMMENTS--1960

 

1999 Main Volume

 

(a) In Evans v. Hamner, 209 La. 442, 24 So2d 814 (1946) and Sandfield Oil & Gas Co. v. Paul, 7 So2d 725 (La. App. 1942), Art. 3519(2) of the Civil Code was held to be self-operative, and no action need be taken by defendant to have the action dismissed upon its abandonment.

 

(b) Under the decision in Carmody v. Land, 207 La. 652, 21 So.2d 764 (1945), it was held that Art.

3519(2) of the Civil Code is applicable only to principal demands, and does not apply to reconventional demands. The word "action" is used in this article instead of "demand" in order to make it applicable to the principal as well as to the incidental actions.

 

This article treats the action as abandoned only if five years has elapsed without any steps being taken

by any of the parties in the prosecution or defense thereof. This change was made to provide for the

case where the defendant has taken some step in the defense of the action, but subsequently moves to

have the action declared abandoned because the plaintiff has failed to take any step in the prosecution

thereof for five years.

 

 

 

 

 

LSA-C.C.P Art.561

Page 3

 

 

 

(c) Prior to the decisions cited in Comment (a) hereof, two exceptions were recognized to the presumption of abandonment through the plaintiff’s failure to prosecute his demand for a period of five years.  The first of these recognized the plaintiff’s right to resist the dismissal by proving that the failure to prosecute was caused by circumstances beyond his control. Burton v. Burbank, 138 La. 997, 71 So. 134 (1916); Bell v. Staring, 170 So. 502 (La.App.1936); Harrisonburg-Catahoula State Bank v. Myers,185 So. 96 (La.App.1938), noted 13 Tul.L.Rev. 641 (1939);  Metairie Bank in Liquidation v. Lecler, 1 So.2d 710 (LaApp.1941). C$ Sliman v. Araguel, 196 La 859, 200 So. 280 (1941). The second was the rule that when the defendant takes any action in the case inconsistent with an intention to have the demand treated as abandoned, he waives his right to have the abandonment decreed. Geisenberger v. Cotton, 116 La. 651,40 So. 929 (1906); Continental Supply Co. v. Fisher, 156 La. 101, 100 So. 64 (1924); King v. Illinois Cent. R. Co., 143 So. 95 (LaApp.1932). For a time there was considerable doubt as to whether these cases had not been overruled sub silentio by Evans v. Hamner, supra, holding that the …………………………………………………………

 

 

 

C 2008 Thomson/West. No Claim to Orig. US Gov. Works.