PRESIDENT’Smessage
Medical Malpractice Reform: It’s About Basic Fairness Amy R. Conley, MD, FACEP President
Jay Falk, MD, FACEP Board Member
As emergency physicians, we have become weary of the current malpractice climate in which we practice. This is completely understandable and justifiable. We are asked on a daily basis to make critical, potentially life threatening decisions with too little information, at break neck speed with the precision of what would have happened in a “perfect world.” The personal toll that a malpractice lawsuit takes on the individual physician can be devastating. Potential loss of confidence, self esteem, reputation and job security add to the time and financial burdens. Accordingly, the American College of Emergency Physicians and Florida College of Emergency Physicians have worked hard to lobby for malpractice reform. We need to be clear about what it is we seek. The current system is badly in need of reform. It allows for far too many frivolous lawsuits in which a bad outcome with potential for extraordinarily large awards for damages, shared by the plaintiff and his lawyer drive the process, irrespective of whether negligence on the part of the provider occurred or did not. Disingenuous experts can convince juries with “junk science” of almost anything in the theater called a courtroom. This being said, we must also be honest with ourselves. There is no question that some of our patients are injured by negligent acts of omission or commission that occur in our departments. In others, our systems fail us and certain details “fall through the cracks.” In some cases, well trained and well intentioned
providers simply make an honest mistake for a variety of reasons. And sadly, in some cases inadequately equipped practitioners make egregious errors. Accordingly, our push for reforms must take into account the legitimate need of our patients who have been injured through true acts of negligence to be justly and fairly compensated. This can be accomplished in many ways; some current pending proposals in front of the State Legislature will be reviewed below. This year, lawmakers are expected to renew their focus on reforming Florida’s medical malpractice laws. Acknowledging the need for reform, during his recent State of the Union speech to Congress, President Obama pledged to support state reforms of medical malpractice systems to lower health care costs and improve care. To achieve this goal, lawmakers need to carefully consider medical malpractice reforms to ensure that Florida laws continue to protect patients, while removing avenues for trial lawyers to target doctors frivolously. These reforms should be guided by the principles of basic fairness. In Florida, lawmakers are considering legislation that would amend the statutes governing doctors by creating a new section of law for “expert witness certificates.” This provision would require expert witnesses in medical malpractice cases to obtain certification from our state medical board. This provision has been met with enthusiasm by our organized
medical community. The idea is that by requiring certification to be able to testify enables our State medical board to sanction “hired guns” for false testimony which could have ramifications for their ability to practice in their home states. This threat might keep these disingenuous experts from testifying in Florida. There are two problems with this approach. First, if the legislation were effective in preventing plaintiffs from having access to experts it would likely be ruled unconstitutional, since plaintiffs have a right to such access. Second, the likelihood is that legitimate experts (for defense as well as plaintiffs) would likely be unwilling to go through a burdensome credentialing and application process. This could result in the unintended consequence of having “career” experts (hired guns) be the only ones willing to go through the credentialing process. The legislation being considered by lawmakers is also aimed at amending the state’s medical malpractice laws to allow ex parte interview of subsequent treating health care providers. The bill, HB 479, sponsored by Rep. Mike Horner, R-Kissimmee, is a good first step toward providing an avenue for doctors to be able to exchange information and obtain the medical history and condition of a plaintiff in a medical malpractice case. Currently, Florida law prohibits non-party physicians from disclosing a malpractice plaintiff’s medical history and condition to a defendant in a medical malpractice case. Without the ability to exchange this EMpulse • Winter 2011 3