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System targets bad doctors, not bad lawyers
Morning Call - October 5th 2003

Paul Carpenter

One problem with tort reform, you see, is that it restricts the ability of lawyers to go after rascally doctors.

Some people, including me, have long favored tort reform, which would put reasonable controls on Pennsylvania's plague of runaway litigation.

The cost to defend a lawsuit can be crippling, even if you win, and contingency fee lawyers know that many defendants (or their insurance companies) will agree to fat settlements, even if the suits have no merit whatsoever. Lawyers rake in a third or more off the top, often for a few hours of work, so frivolous lawsuits and other forms of legal abuse make many of them very rich.

With a lawsuit filed nearly every time a doctor takes somebody's pulse in Pennsylvania, the soaring cost of malpractice insurance has forced some to leave the state and others to retire prematurely.

That, it was explained in May by Mark Phenicie, legislative counsel for the Pennsylvania Trial Lawyers Association, is all because of bad doctors.

''They need to look inside their own house and clean out these bad doctors,'' he was quoted as saying about the malpractice insurance crisis.

A few days ago, I received a copy of Legal Times, a publication in the Washington, D.C., area. It was sent by Dr. Tom Bonekemper of Quakertown, one of those physicians forced to retire by high insurance costs. (Bonekemper also has a law degree, but does not practice law, bless his soul.)

Legal Times had a story based on a study by Americans for Legal Reform, a nonprofit, nonpartisan group that says it is the nation's largest and oldest legal reform organization. I obtained a copy of the study, which calculated how every state, plus the District of Columbia, did in terms of malpractice by lawyers and how they are disciplined.

Pennsylvania came in 51st. Dead last. The worst. When it comes to lawyer malpractice and discipline, Pennsylvania's bad lawyers are in heaven and everybody else is in hell.

The study graded states on the adequacy of discipline imposed, the fairness of disciplinary procedures, public access to the process and other factors. Pennsylvania got America's lowest marks.

''Lawyer discipline hearings in Pennsylvania are closed to the general public,'' said the report. ''Even grievants are excluded from hearings unless bar counsel specifically requests that they attend.''

Also, it said, ''non-lawyers are not allowed to sit on lawyer discipline hearing panels.''

Knowing how hot Phenicie and the PaTLA are to stamp out malpractice of any kind, I called him in Harrisburg to ask how our disciplinary process for lawyers was doing.

''In Pennsylvania, we have a very strong disciplinary board,'' Phenicie told me.

When I told him a national study said just the opposite, he changed the subject to medical malpractice. I kept going back to lawyer malpractice and he repeatedly insisted on talking about doctors. Finally, I asked about the assertion that the public is not allowed to participate in the process for lawyers, or even observe it.

''It's done by other attorneys. ... Attorneys would know best about the proceedings,'' Phenicie said. ''It's public after the fact,'' he added, referring to reports on the outcomes of the disciplinary hearings.

(Physician accountability involves both disciplinary boards and litigation. Imagine those processes being closed to everyone but doctors.)

Anyway, hearings for rascally lawyers are held by the Disciplinary Board of the (notorious) Pennsylvania Supreme Court, so I called and was asked to leave a message for chief counsel Paul Killian.

My message noted that I had questions on why Pennsylvania ranks worst on lawyer malpractice and discipline, but Killian never got back to me.

Copyright © 2003, The Morning Call