Anyone watching daytime or late-night cable TV has to notice that every third commercial is for a toxic tort. As my wife had breast cancer, one, in particular, caught my eye. In it, the claim was made that: “If you suffered from permanent hair loss due to chemotherapy, you might have a claim because less toxic treatment was available.” This struck a chord with me because my wife was in that transition period between traditional chemotherapy and newer biologic treatments. I remember my wife’s oncologist saying that as of that moment, traditional chemo was still the standard of care, but the newer treatments were showing real promise as being just as good or better but with fewer side effects. After doing our own research we decided on the newer therapy which ultimately turned out to be correct. However, these transitions do take time.

Clearly, the legal system seems to think that health care, and everything else for that matter, can turn on a dime. I imagine something similar happening to other toxic torts like asbestos. Some very early, not-yet-proven and unclear evidence were indicating that asbestos was a problem, but certainly not enough to immediately stop using asbestos. As the evidence became clear, the transition away from asbestos began. However, for reasons I cannot fathom, our courts have allowed that very early, unclear evidence can be used to make the claim that defendants “should have known there was a problem.”

Think about how absurd this thinking is. We are all supposed to able to accurately predict what will happen going forward based on scant early evidence. Nobody makes decisions this way yet this is how our tort system is allowed to function. Lawyers know this, and they have been taking advantage for years.

There are two fundamental flaws in our tort system that have allowed this to happen. First, decisions are made by juries who lack the technical expertise to understand the system and often make decisions based on emotion and second, the lack of loser attorney pays rules.

The first may be handled by specialized courts or, as it is in countries socialized medicine, malpractice decisions are made by government panels. (Bear in mind anyone who thinks socialized medicine is the answer to health care’s problems.) However, I would concentrate on the second. As anyone who’s ever been sued knows, lawyers play the it’s cheaper-to-settle-than-to-defend game. Because there are little to no consequences for filing claims with wild accusations and no merit, there is little incentive to not sue. Every physician who has been sued knows the feeling when you get that initial summons where you get accused of everything from the Hindenburg disaster to kidnapping the Lindbergh baby. Why this is allowed is beyond me.

So the question remains: “How do we allow plaintiffs unfettered access to the courts but at the same time stop the wild west mentality that has pervaded our tort system?”

One answer is loser attorney pays.

Here is how it could work. Separate malpractice into an investigative, then a resolution phase. After an initial discussion between plaintiff and attorney, if a decision is made to proceed then a letter is sent informing the defendant physician they are to be investigated for possible malpractice. During this phase, the defendant physician is required to fully cooperate providing whatever is requested. If at any time there is a settlement offered or plaintiff attorney wishes to stop, then no harm, no foul. It is only after this phase is completed that a specific charge can be leveled at the defendant physician and the resolution phase starts. If the physician settles, it ends. However, if the physician decides to fight, it goes to trial and the plaintiff loses or the plaintiff attorney tries to back out, then they have to pay the defendant physician’s legal costs.

I seriously doubt anything like this will happen unless physicians stand up and demand it. But a fundamental question remains: Why is it that with all the turmoil that practically everyone involved with health care has gone through, why has the legal system remained immune?

Thomas D. Guastavino is an orthopedic surgeon.

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