My Proposal for Federal Law, State Level Medical Malpractice Systems:

Any state licensed medical practitioner/medical facility who/which:
1. is participating in Medicare and/or Medicaid and/or
2. has EMTALA responsibilities and/or
3. has professionally impacted interstate commerce since enactment
and paid a quarterly income tax amount (described below) into the system for a state may enroll in the system for their state and shall have the due process rights of the system for any and all practice/business done in the state after enrollment.

FUNDING
1. To process claims and pay economic damages:
a. a 10% federal tax on gross participating practitioner obstetric care income and
b. a 2% federal tax on other gross participating practitioner medical care income and
c. a 1% federal tax on gross participating medical facility income
d. such additional tax amounts as a participating state government reasonably deems economically necessary under its law

2. All would be subject to appropriate adjustment (by medical specialty) under state law, including:
a. surcharges for practitioners, who:
A. have apparently been in practice for less than three years and/or
B. are under licensing probation and/or
C. have been sanctioned by a government or medical organization for criminal or professionally related activity and/or
D. have cost the system (for the state) more than they have paid into it and/or
E. practice in a high-risk specialty
b. rebates, when a reserve has become excessively large

3. To pay non-economic damages of any type:
a. a tax on soda and/or other widely consumed consumer product/products/service/services, to be levied by the state and paid into the system
[Soda is undertaxed, most other things are overtaxed.]

4. The revenues would be placed in accounts for economic and non-economic damages, to be set up as directed by the Secretary of HHS and taken over by a state if it decides to participate in the system.

The payment by patients and/or insurers for those taxes shall be a private contractual matter.

Enrollment in the system of the state shall bar financial responsibility/malpractice insurance/like legal requirements of the state.

2. Each panel shall normally have three members and would have its members appointed by:
a. the Secretary of HHS if the state has not acted to set up (enough) panels or
b. the governor of the state if authorized by state law or
c. the state licensing agency governing practitioners of the medical art involved if authorized by state law or
d. as otherwise provided by state law

3. Panel members would be paid:
a. $100/hour of work if they possess an active MD/OD/DDS license + $30/hour more if board certified...
b. $40/hour of work if they have another active state medical license or
c. if the panel members are employed by the state, such other compensation as state law may provide

The Secretary of HHS shall appoint state system managers until state law eliminates the need to do so.

HHS is hereby provided with an appropriation of $20 million to start up the systems.

Administration personnel shall be paid appropriate SES/GS amounts while systems for states are run by the federal government.

1. The medical part of a claim of each claimant must be prepared by a state-licensed practitioner in good standing with the state, who certifies he/she:
a. is an expert in the medical art involved and
b. has correctly dealt with at least one patient in the prior four years who was in a like situation of the patient alleged to have been wronged prior to treatment and
c. provides relevant state licensing (and board documentation) and education information to the panel

2. The medical part of each claim must describe:
a. the alleged malpractice
b. what the practitioner believes should have been done/not done instead

3. Each claim must be accompanied by:
a. a fee/fees of
I. $300 plus
II. $20 per page or image of evidence plus
III. for each claimant, 2% of the maximum amount of damages the claimant (and/or his/her attorney) wishes to (and could) get via the system

The critical written malpractice medical evidence should be highlighted in yellow, or otherwise appropriately noted.

The critical evidence for monetary demands should be highlighted in orange, and/or otherwise appropriately noted.

A list of desired monetary demands should be submitted for each claimant, both in writing and by an e-mail directed to the panel, with suggested amounts and their reasons (in the order of the evidence), as may justify an award, provided.

5. A claim involving more than one claimant must be prepared by an attorney who is a member of the state bar and who represents all the claimants.

6. No future amount may be claimed except when requested via an attorney licensed by the state [so appropriate future amounts are requested].

SERVICE of PROCESS
1. Each medical practitioner or institution allegedly involved plus the appropriate licensing agency/agencies must be served and provided with a full printed copy of the claim information.

INITIAL RESPONSE
1. Each medical practitioner/institution named may respond by a sworn notarized writing to the claim.

PANEL REVIEW
1. Not less than 30 days after completed service, the panel may review the claim.

2. A panel may:
a. subpoena any additional evidence it may require
b. hold one or more hearings
c. subpoena witnesses

3. Hearings may be recorded electronically by panels and attorneys of record, or their designated agents.

2. A panel may:
a. require further education of any practitioner involved in the case
b. require the practitioner pass one or more exams before resuming professional practice with respect to medical issues
c. suspend the license(s) of any wayward practitioner involved in the case for up to 30 days
d. make recommendations and provide copies of its decisions to state licensing agencies
e. award monetary damages

RIGHT of RE-REVIEW
1. Any party unhappy with a panel decision may request a re-review by:
a. paying an appeal fee equal to half the total fee amount(s) above within 30 days, or such lesser amount as may be specified by state law, if the system for the state is run by the state
b. submitting any additional evidence desired plus written arguments prepared by at least one other certifying state-licensed practitioner in good standing with the state

SECOND SERVICE of PROCESS
1. The party requesting a re-review must serve all parties involved in the case and provide each with copies of said additional evidence and of those written arguments

SECONDARY RESPONSE
1. Each medical practitioner/institution named may respond by a sworn notarized writing to the claim.

PANEL RE-REVIEW
1. Not less than 30 days after completed service, the panel may re-review the claim.

2. the panel may hold a hearing or hearings and subpoena any additional evidence or witness or witnesses it may require.

2. A panel may:
a. require further education of any practitioner involved in the case
b. require the practitioner pass one or more exams before resuming professional practice with respect to (certain) medical (or legal) issues
c. partially/completely suspend the license(s) under the laws of the state of any wayward practitioner involved in the case for up to 30 days
d. make recommendations and provide copies of its decisions to state licensing agencies
e. award monetary damages

RIGHT of APPEAL to the COURT SYSTEM of the STATE
1. Any party unhappy with any final panel decision may appeal the decision to a state court of law subject to procedural law of the state within 30 days, and shall inform the system of said appeal by the system's web site.

2. If the state doesn't provide its system with revenue to fund non-economic damages, non-economic damages must be requested via the state court system.

3. The state court system must decide the case within 24 months and shall send by mail, on a certified delivery basis, copies all judgments that may affect the state system to the state system.

State licensed practitioners such as doctors and physician assistants may, without triggering liability or state law surcharges:
a. provide verbal guidance, as necessary or as is often provided by state licensed medical professionals, to patients/guardians
b. prescribing a test or tests or a then approved FDA medical product for a patient
c. provide printed copies of federal and/or state government sponsored test advice information to patients/guardians (for any purpose, including that of avoiding defensive medicine costs)
d. provide printed copies (of portions) of guidelines widely accepted by domestically licensed medical professionals to patients/guardians
e. follow guidelines or computer-based checklist systems widely accepted by domestically licensed medical professionals

This section shall not excuse multiple drug administration/interaction malpractice.

Awards may not be provided for merely not following any guideline, but only for significant failure to provide care to a patient at a level a large percentage of state practitioners (in the relevant medical art) would consider acceptable.

The system is meant to deal solely with medical malpractice and shall not deal with the legal problems caused by defective products.

State licensed practitioners such as doctors and attorneys may charge fees, which must be reasonable and which may be regulated by state/federal law, for assisting people/institutions through the process.

1. The term "economic damages" means objectively verifiable monetary losses, including for:
a. past/present/future payment for past/present/future remedial health care services and medical products, including those pain related
b. loss of earnings/employment/business or employment opportunities
c. cost of obtaining domestic services needed:
I. by the injured patient and/or
II. to replace those habitually and necessarily provided to a person reliant on the injured patient

2. The term "non-economic damages" means other damages, including: physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature.

PAYMENT of CLAIMS
1. Adjudicated finalized claims are to be paid on a monthly basis by the system for the state on or about the third business day of the month for:
a. medical expenses, to be paid first, on an equal basis dollar-by-dollar (per injured party) in so much as the state reserves for economic damages on hand permit
b. lost income + the cost of obtaining domestic services, up to $2,500/month/injured patient, to be paid on an equal basis dollar-by-dollar (per injured party) in so much as the state reserves for economic damages on hand exceed all pending medical expense claims by over 30%
c. claims for other economic losses to be paid on an equal basis dollar-by-dollar (per injured party) in so much as the relevant state reserves for economic damages on hand to pay them exceed all pending economic claim amounts by over 10% plus at least $10 per state resident by the last census used for Congressional apportionment

2. claims for non-economic losses are to be paid on an equal basis dollar-by-dollar (per injured party) in so much as the relevant state reserve has sufficient state federal Medicaid dollars to pay them and all economic claims finally adjudicated have been paid in full

3. Claims for future amounts must be held in trust [so PPACA/Trumpcare health coverage payors don't have to pay too].

4. Claims will be paid to the attorney of record for a claim, who must (arrange to) hold future client amounts in trust and return excessive amounts back to the state (system).

5. Practitioners and medical organizations must reimburse the system as required by the system for 20% of the amount of damages paid by the system.

1. The following types of damages shall be barred with respect to claims against enrolled parties:
a. lost income above $10,000/month, except as required by contract
b. cost of obtaining domestic services, other than those needed for the injured patient and/or for a severely disabled or unemployable person habitually cared for by the injured patient
c. non-economic damages, except for:
A. inconvenience [awards in excess of two times the taxi fare amount for travel + $2 per five minutes of inconvenience shall be justified]
B. physical impairment [awards in excess of $30,000/$5,000/$1,000 per year (of life expectancy) for crippling/life-transforming/minor impairment shall be justified]
C. dismemberment [awards in excess of $20,000/$4,000 per year (of life expectancy) plus a base of $100,000/$20,000 for the loss of two/one hand(s), arm(s) or leg(s) shall be justified]
D. disfigurement [awards in excess of $20,000/$3,000/$1,000 per year (of life expectancy) (cut in half for ages > 42) for severe facial/typically disturbing to interacting strangers/minor disfigurement shall be justified]
E. injury to reputation [awards in excess of $5,000 + ($1,000+$200 per month)/loss of a close personal relationship shall be justified]
F. up to 30 days of: suffering, mental anguish, emotional pain [awards in excess of $300/$200/$100 day for crippling/life-transforming/other loss shall be justified]
G. loss of enjoyment of life [awards in excess of $500/$200/$100 per month for crippling/life-transforming/other loss of enjoyment (in excess of 12 months) shall be justified]
H. loss of society and companionship, loss of consortium [up to age 18 of a child/up to five years of a spouse or life partner/one year other: awards in excess of $5,000/$2,000/$1,000 per year for crippling/life-transforming/minor loss shall be justified]
I. physical pain with a physically evidenced basis [awards in excess of $30,000/$5,000/$1,000 per expected year of life expectancy for crippling/life-altering/other pain shall be justified]
J. such other amounts listed by contract

Panels and courts may rely on state laws generally applicable to tort cases that set up award formulas with respect to the allowed types of non-economic damages.

1. The system and state courts may only pay for "other" physical pain and its treatment for an injured patient only during the time is was treated by:
a. the injured patient's designated, habitual, most common or actual primary care physician
b. the first physician to treat the pain after the malpractice, other than the injuring medical practitioner
c. a surgeon who performed remedial surgery
d. a pain specialist who was referred to by any one of the above
e. an anesthesiologist with respect to remedial surgery
and only if the injured patient committed no criminal offense with respect to painkillers after being injured

Except for payments for remedial medical expenses and the cost of obtaining domestic services, all award amounts shall be subject to basic federal income tax.

Self-employment tax must be withheld and paid on award amounts meant to replace the lost income of injured parties.

Medicare tax at the rate of 2.9% must be withheld and paid on award amounts meant to replace the lost income of injured parties.

Systems run by the federal government will not withhold for a state or state law government or agency.

In any case where damages were paid by the system, the following shall be a matter of public record:
1. the names of the people/entities who were found by a panel to have caused damage and the amounts each caused, and independently, to protect patient privacy
2. the people paid and the total amounts each was paid

“There would be no reason not to make a claim under this system.”

The $300/2% fee system is meant to provide reason.

To try to get anything would cost you $300 plus the expensive fee of a medical professional to prepare the claim.

The only medical professionals who would prepare a claim against a fellow medical professional expect big bucks.

At least $450 (and more likely $950++) and two rejection letters later you can try things the old-fashioned way at the local courthouse with a judge that will now know your claim is bogus.

My proposal allows a panel to suspend the license of a wayward claim preparer for 30 days and even to recommend license revocation.

To try to get $1 million would cost at least $20,300 in fees. That’s a very expensive rejection letter.

I think my proposed fees are sufficient.

“I assume the purpose is to insulate responsible Physicians from Jackpot Justice Malpractice Suits.”

Yes.

“fines and penalties”

They can’t fine anybody.

Yes, they can suspend professional licenses for 30 days. I don’t expect that to happen often.

“grossly overpaid Union protected Public Servants”

The panel professionals will mainly be doctors, paid $100/$130 hour. A nice part-time, semi-retirement job.

The highlighting and list is meant to cut the cost of their services greatly.

I was called to jury duty recently. The lawyers expected a 14-day case. I suspected the lawyer cost to be at least $300,000 just for that one case.

It’s much, much cheaper to handle things administratively (as much as is possible), even with “elite grossly overpaid Union protected Public Servants”.

“I didn’t ask about authority to tax, I asked about authority to provide professional/business insurance.”

“United States law requires payment of 8 cents per barrel of oil to the Oil Spill Liability Trust Fund for all oil imported or produced.”

https://en.wikipedia.org/wiki/Price%E2%80%93Anderson_Nuclear_Industries_Indemnity_Act

The constitutionality of my plan comes from the need to maintain the affordability of health insurance system that pays for the second most important article of interstate commerce, prescription drugs (~$300 billion/year).

It also comes from the need to have enough doctors to prescribe those important products of interstate commerce.

They can’t fine anybody.

The IRS disagrees.

The panel professionals will mainly be doctors, paid $100/$130 hour.

The panel professionals will mainly be exactly what the Federal Court that reviews this legislation directs. Remember that Jackpot Justice is administered by the same lawyers judges and courts that will review this legislation. They even had their own Presidential candidate a while back, John Edwards.

Additionally there are plenty of immune non practicing doctors and pros that are media talking heads who would be delighted to testify against practicing physicians.

It’s much, much cheaper to handle things administratively (as much as is possible), even with “elite grossly overpaid Union protected Public Servants”.

As we have seen with EPA and CAL EPA.

Low income plaintiffs will immediately have all filing and appeal fees waived and will buy soda on their way home with their EBT card.

This is entirely Horse Manure.

“By that measure the powers of Congress are unlimited rather than enumerated.”

The Supreme Court has used a most generous measure since the 1930’s.

My plan is at least as Constitutional as Medicare or Social Security.

No Supreme Court is going to take down either one or set a precedent that would allow Medicare or Social Security to be ruled unconstitutional.

Um, you have a good one there.

I have a lot of good ones.

If you really want to crimp Jackpot Justice you might try:

Loser Pays

Plaintiff and Lawyer considered collectively (If the Plaintiff is broke and can't pay the defendant upon losing, plaintiff's lawyer pays).

Require a preponderance of evidence show prior intent on behalf of the Defendant for an award to Plaintiff.

Immunize physicians in a public emergency event (like good Samaritans).

Immunize physicians that are required to work excessively long shifts beyond fatigue limits.

“Loser Pays”

“Plaintiff and Lawyer considered collectively (If the Plaintiff is broke and can’t pay the defendant upon losing, plaintiff’s lawyer pays).”

In malpractice cases I’m generally fine with that.

At least one expert witness is required. That expert can be (and in practice is) consulted in advance.

However if a popular guideline is violated or the procedure of the most popular textbook isn’t followed, should legal fees be awarded?

Should I and my attorney be held liable if a licensed medical doctor of the state says that malpractice was committed, describes that malpractice in writing and provides me and my attorney peer-reviewed literature supporting the filing of a suit?

How am I to know what doctors in northeast Nebraska practice in an era of patient privacy laws?

In patent cases never. Patent law includes stuff like obviousness (based on thousands of pages of prior art, foreign and domestic).

In HOA cases, never. HOA boards are often unreasonable.

“Immunize physicians that are required to work excessively long shifts beyond fatigue limits.”

Notice to the public?

Hospital only?

Should we make the patient’s hospital/insurer take on the risk so injured patients can get compensated? Patient only compensation?

“soda tax”

It would be hard to collect in areas like Metro NYC/DC/KC/Philly because other states are nearby and soda can be stored for a long time.

Perhaps a different tax.

Cable tax increase?

“Low income plaintiffs will immediately have all filing and appeal fees waived and will buy soda on their way home with their EBT card.”

Mr. Indigent would still need a claimant’s practitioner’s statement.

Perhaps a panel should be able to fine such wayward practitioners.

Perhaps each claimant practitioner should have to pass a special exam and post a bond for possible unpaid fee amounts for unjustified claims.

Mr. Indigent might find his real lottery prizes justified judgements seized for 10 times the standard fee.

Mr. Indigent might lose his Obamaphone benefits for ten years.

“Where does the Constitution authorize”

States will make power grabs taking over their systems pronto.

I believe every state runs its own unemployment compensation system.

“Loser pays”

Just to be clear, my system envisions panels to function informally, much as small claims court do.

If less than the small claims court maximum is claimed, no attorney fees would ever be paid.

The panels would almost never hold hearings. Typically, the practitioner statements and medical evidence would be thoroughly reviewed by one panel member and he/she would form an opinion. Then the entire panel would meet and discuss the case among themselves.

If for a claimant,they would then note on the list what damages to award. An administrative clerk would go through the evidence to see that the amounts are justified by evidence.

The panel would then (meet again informally to) issue their official decision.

Hearings would only be held when a panel thinks witness testimony is required.

Medical malpractice is a scientific matter, not a legal one.

If some court ordered damages are ultimately upheld and the total amount upheld for a claimant hasn’t all been paid to the claimant within 30 business days after the court decision has been presented to the wayward practitioner, then no “loser pays” whatsoever.

The mere filing of a complaint should never trigger “loser pays”.

The ‘King’ heard complaints of his subjects because he did not want them taking private revenge.

The “Loser pays” clock should only begin tick 30 days after a logically complete response has been served on a claimant (and all sums due the claimant have been paid).

The claimant should know enough, go away.

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