I just saw this at the injuryboard.com blog:

According to the facts in the lawsuit, in June 2003 Dr. Vaidya treated Dr. Westmoreland for removal of a stent from his urterer. During the procedure Dr. Westmoreland maintains he experienced pain and repeatedly told Dr. Vaidya to stop. Dr. Westmoreland also claims the procedure took 15-20 minutes when it should have only taken 15 seconds. Dr. Westmoreland alleges he has developed a variety of aliments including Peyronie’s Disease because of Dr. Vaidya.

Of course, I have no idea how much of this is true, if any of it is. That’s for the courts to decide. What makes this case interesting is that the plaintiff did not (and perhaps was not able to) follow required procedures for a medical malpractice case in West Virginia.

The suit was dismissed in October, 2006 when the judge ruled that Plaintiff failed to follow the requirements of the Medical and Professional Liability Act of 2003 in filing a certificate of merit. In both of his original suit and appeal, Plaintiff Westmoreland stated that the 14 urologists he consulted with 10 declined to sign the certificate and the remaining two wanted a fee of $40,000.

(Obviously something is wrong here. I’m not sure where the remaining two doctors disappeared to. Perhaps 14 is a typo for 12).

I wonder how this worked. Did the majority of doctors decide that the case had no merit or did they just not want to get involved? Or did the two who demanded payment not care about the merits of the case or did they think the patient was in the right but wanted the money before they would publicly admit to it? Whatever happened, the Supreme Court of West Virginia was not impressed. On June 6, they announced they would hear the case.

The problem, as I see it, is that we aren’t going to be able to make much headway in reducing medical costs (and thus, the availability of medical services to people who need them) if reform laws are simply set aside by the courts. I note that the West Virginia Record, the state’s legal journal, agrees with me. They commented before the decision was made that the Court was in danger of “gutting one of the most common-sense and widely supported provisions of our state’s Medical and Professional Liability Act (MPLA).”

At issue is what’s known as the “certificate of merit” requirement. It holds that in medical malpractice lawsuits, lawyers must first get an independent medical specialist to “certify” their case has legitimacy before proceeding. The concept is to protect doctors and their insurance rates from inexperienced lawyers aiming to pot-shot their way to a quick-and-dirty settlement.

That was the problem back in 2001 when lawsuits had driven liability insurance rates so high that Wheeling was without neurosurgeons and ambulances were being re-routed to Pittsburgh. Beckley had no obstetricians, and specialists were hard to find even in places like Charleston or Huntington. One national magazine dubbed West Virginia “Tort Hell” — or “Tort Heaven,” depending upon where you sat. Doctors who weren’t running for the border were staging mass rallies in white coats, begging the politicians for relief.

Certificates of merit were part of the package. Many respectable members of the plaintiff’s bar supported the idea, as it keeps out the fly-by-night buffoons striving to give them a bad name. The concept caught on: liberal Democrats John Kerry and John Edwards (a medical malpractice lawyer himself) even made certificates of merit part of their campaign platform in 2004.

But in his appeal to the Supreme Court, Dr. Westmoreland holds they are unconstitutional. He argues that obtaining a certificate of merit is too expensive. Requiring one, he says, restricts citizen access to our courts.

Well, it’s either that, or we’re de facto restricting citizen access to our hospitals.

Seeing that we don’t have an inalienable right to health care nor to filing a lawsuit (despite what lawyers claim), it’s the people’s prerogative to prioritize. It’s up to us to pick and choose — do we want more lawyers? Or more doctors?

In 2001 and 2003, West Virginia chose loudly and clearly. It would take some nerve for but a handful of judges to usurp that.

This is all debatable, of course, but I think there is a lot of evidence that the editorial’s portrayal of a stark choice between affordable litigation and affordable healthcare is a reasonable one. The abundance of new doctors in Texas, and the shortage of mammogram readers, both argue for this understanding of what is at stake.