Special courts are not the right setting to decide medical liability

LETTER — Posted Jan. 2, 2006

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Regarding "Thinking outside the jury box: Another tort reform answer" (Article, Nov. 14): We disagree with the medical court.

  • Doctors do well with juries. What mechanism will top the present 75% "not guilty" verdict rate?
  • Having worked in places similar, we cannot have a Harvard Medical School set clinical standards. They do a job almost unrelated to clinical care.
  • The medical court reminds of the 1902 to 1921 state workmen's compensation laws. Litigation was eliminated in favor of bureaucratic decision-making functionaries. Total payouts for industrial injuries exploded compared with those of prior litigation, and went to the less severely injured, with workers gaming the system.
  • Doctors are already privileged as defendants compared with other categories. We set our standards of care, and are unusually favored by the public and juries. The tort system is unjust to the entire segment of productive America. Doctors should join forces with all victims of meritless litigation, and not jettison them. Indeed, the current tort system should be expanded to lawyers and judges. The latter have conveniently dealt themselves unique immunities because we allowed them.
  • Being at the mercy of the proposed single, court-appointed, professional expert witness is out of the question for the clinician.
  • A judge who is expert in health care is likely to be a stickler for records, procedures, guidelines, doing things by the book; i.e. a catastrophe.

Innovative, creative problem-solving by doctors in the trenches will be severely discouraged by the outdated notions of the judge.

He will assume one can give exceptional care and follow dubious guidelines, keep perfect, voluminous documentation, as if a recipe.

Such massive human experimentation as a medical court requires careful pilot testing in small jurisdictions, with thorough reports.

An alternative simple change in the Rules of Civil Procedure will work better to eradicate meritless suits. If two medical experts disagree in good faith (without lying) about the care rendered, a medical controversy exists per se. Such a controversy can only be settled medically, with additional scientific research and data. At times, this merely means two standards of care exist. The back and forth rhetoric in court to sell a side of the story to the jury violates the fair hearing portion of the procedural due process rights of the defendant.

Only cases that are within the knowledge of the jury should survive a pretrial motion to dismiss. An example within jury knowledge would be amputating the healthy leg, leaving the gangrenous one.

David Behar, MD, Bethlehem, Pa.

James L. Schaller, MD, Tampa, Fla.

Note: This item originally appeared at http://www.ama-assn.org/amednews/2006/01/02/edlt0102.htm.

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