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Curing the Malpractice Injustice

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In 2005 the state legislature, succumbing to lobbying efforts from the medical profession, created an onerous threshold to the commencement of a malpractice lawsuit. In its zeal to curb what was represented to be frivolous lawsuits, that law required that the attorney filing the case had to append an unsigned report from what the law referred to as a “similar health care provider” to establish a reasonable belief that there was merit to the claim. That may all change with a bill before the current legislature.

It made sense to require that there be a suitably credentialed expert opining on the alleged violations of the standards of care raised in the lawsuit, before suit was commenced. Otherwise, there would be those who would take a scatter shot approach, filing suit and hoping to land an expert at some point. Most, if not all, successful plaintiff’s malpractice lawyers would not venture into court without the support of an expert. Cases are simply too costly to pursue without a reasonable chance for success. Regardless of how suit is commenced, malpractice cases require the testimony of an expert to establish the applicable standard of care and to describe the violations alleged. In the absence of that, no malpractice case would ever be submitted to a jury.

There was a glitch in the law, however. One standard was created to allow someone to be qualified to testify as an expert; another, stricter standard was created regarding the credentials of an expert qualified to give the good faith opinion to start the lawsuit. Thus, a lawyer may have retained someone with outstanding credentials, thoroughly familiar with the appropriate standards, but not board certified in that particular field. That person gets to testify if the case proceeds to trial; but a report by that same person would not withstand a motion to dismiss that case at its inception.

The result was that substantial injuries, despite well credentialed claims of negligence, were dismissed on this hyper-technical rule. The most glaring example was a recent Supreme Court decision involving the treatment of a trauma patient brought against an emergency room physician, a separate board specialty. The good faith letter was authored by an eminently qualified trauma specialist. Because that doctor was not specifically board certified in emergency medicine the case was dismissed.

In that case the patient was admitted to a local hospital and an emergency specialist failed to diagnose multiple fractures. The patient ultimately suffered a fatal heart attack as a result of the pain from the undiagnosed injuries. The good faith report was authored by a general surgeon and trauma specialist who was familiar with emergency room care, having considerable experience treating trauma patients in the ER. The case was dismissed because this doctor was not board certified in emergency medicine.

Had the case been allowed to go to trial even this court observed that this surgeon possessed the requisite qualifications to testify at trial. Ironically, a point lost on the medical profession who believe that the case was real justice, the standard for starting suit is merely the possession of a good faith, reasonable belief that the plaintiff will prevail. That standard is far less than the standard of proof by preponderance of the evidence, required for the plaintiff to prevail at trial.

The result of this poorly crafted law has been to deny access to the courts for claimants and their survivors who have truly meritorious claims. That isn’t weeding out frivolous cases or using the law to shield doctors from baseless suits. It is a cudgel to beat back legitimate claimants and insulate the medical profession from being judged by the community it professes to serve.

Categories: General
Rich Meehan

5 Responses

  1. Rich Meehan says:

    Thank you for your comments. When a court considers the qualifications of a physician to present testimlony board certification that is only one part of the equation. You are correct that there are many fine doctors who are not board certified but possess the experience and training to provide clear and insightful opinions. They are permitted to testify but only once the case is permitted to go forward. That foundational rule applies equally to defense and plaintiff experts.

  2. Edward J. Volpintesta MD says:

    April 1, 2012
    Attorney Rich Meehan
    Your blog report on March 24 discussed the controversy surrounding board certification and how the presence or lack of it created a false dichotomy in the credibility of a physician in malpractice litigation.
    Your point is a good one. You may not know it but board certification started out as a voluntary process. Somewhere along the way it got misconstrued as a sign of superior skill and knowledge. In other words that being “certified” was synonymous with excellence. This is wrong because there are good and not so good doctors who are not board certified, just as there are good and not so good physicians who are board certified.
    The whole concept of certification is a hotly debated one. An increasing number of physicians do not accept the legitimacy of the American Board of Medical Specialties’ (ABMS) for many reasons.
    In fact there is a movement in medicine to create new competing boards so that physicians are not beholden to the monopolistic grip of the ABMS.
    I mention this because your take on how board certification confuses the debate on malpractice was good. It brought to light information that I had not been aware of.
    It seems that a physician’s experience and his reputation should be given equal if not greater weight than “certification” when testifying as an expert or giving a good faith opinion.
    Sincerely,
    Edward J. Volpintesta MD

  3. Edward J. Volpintesta MD says:

    April 1, 2012
    Hartford Courant
    To the Editor,
    Until a new and better system is devised for resolving malpractice cases, physicians and lawyers will continue forever deadlocked in their ideological battles.
    Clearly, the current system is too adversarial and attempts to correct it have reached their limits.
    Bold innovation is needed. Although limits on pain and suffering have worked in some states, they are constantly being challenged by lawyers. Besides, physicians are too busy taking care of patients to spend time fighting it out with lawyers in court.
    Health courts presided over by special malpractice judges are a good alternative to the present system. They get money to injured patients quickly, save money that is now spent on court and attorney fees, and lessen the pressure on doctors to practice defensive medicine.
    Lawmakers need to publicize this alternative. It’s the right thing to do.
    Edward J .Volpintesta MD
    155 Greenwood Avenue
    Bethel , CT 06801 1-203-744-1639

  4. Rich Meehan says:

    The unfortunate point is that well qualified doctors in similar specialties that overlap have opined about egregious violations only to see those cases dismissed.

  5. Mark says:

    It seems reasonable to me that before a physician is accused of not meeting the standard of care, any so-called “expert” is vetted and certified by a third party medical board in the same specialty. If you are not board certified in your specialty then it is likely you are not active in patient care and too busy testifying in court cases to be classified as a real expert!