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Curing the Malpractice Injustice

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.

Rich Meehan