Are there lots of frivolous medical malpractice cases in our courts? Victor Schwartz, general counsel of the American Tort Reform Association, says no. He told Business Insurance last year, "it is 'rare or unusual' for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring."
The Harvard School of Public Health says no, finding that, "portraits of a malpractice system that is stricken with frivolous litigation are overblown." Lead study author, David Studdert, associate professor of law and public health, said in announcing this study,
Some critics have suggested that the malpractice system is inundated with groundless lawsuits, and that whether a plaintiff recovers money is like a random 'lottery,' virtually unrelated to whether the claim has merit. These findings cast doubt on that view by showing that most malpractice claims involve medical error and serious injury, and that claims with merit are far more likely to be paid than claims without merit.
Now that we've cleared that up, let’s go find a solution in search of a non-existent problem.
Connecticut not too long ago passed a “Certificate of Merit” law (see more about these laws here), so onerous for injured patients that it’s like having a sentry post blocking the courthouse door for legitimate cases. That's why other states have found them unconstitutional. And thanks to a new and devastating Associated Press investigation of the impact of Connecticut's law, we know this for sure. Take the case of Patricia Votre, for example:
Patricia thought she was well prepared when she got pregnant again. She made arrangements with her doctors to consult with high-risk pregnancy experts from Yale University and to have the specialists take over her care.
But when she began having problems including a fever and back pain, her doctors refused to turn over her care to the Yale experts, failed to treat her according to the Yale group's recommendations and even hid the experts' care plan from her, according to a lawsuit she filed in 2006. Her son, Miles, nearly died at birth from an E. coli infection and lived for 51 days before succumbing to a blood infection in 2003.
Despite the serious allegations, Votre was never able to get her case before a jury. A judge dismissed her lawsuit based on a technicality added to the state's medical malpractice law in 2005 as part of the national "tort reform" debate. It requires plaintiffs in all malpractice cases to get an opinion from a medical expert backing up their allegations before they can sue, but legal fights over the credentials of those experts have led to many cases being dismissed.
"It was just not right. It was just not fair," said Votre of Woodbridge, Conn., who's now 41 and the mother of two children ages 7 and 12. "They used the law to manipulate the situation. It wasn't about my baby. It was about me."
Although the law was aimed at preventing frivolous lawsuits and reducing high malpractice insurance rates, it's had the unintended consequence in many cases of keeping seemingly legitimate lawsuits out of Connecticut's court system, an Associated Press review has found. The worst part, plaintiffs say, is that doctors, nurses, dentists and other medical professionals end up not being held accountable for their mistakes.
Since the law took effect, the number of malpractice cases filed in the state has dropped 20 percent to an average of 292 per year from an average of 364 annually, state records show. It's not clear how much of the decrease can be attributed to the opinion letter requirement, but malpractice lawyers believe the mandate has played a big role.
"The argument is made that these (opinion letters) preclude the filing of a frivolous claim," New Haven attorney Joel Faxon said. "It's all just fear-mongering. It's an impediment to bringing a case that gives them (defendants) a leg up."
A bi-partisan group of lawmakers is trying to the get the law changed, saying “that's not what they intended” but so far, the bill has died “under heavy opposition from doctors and hospital officials.” Let’s hope they keep trying.
The issue of "tort reform" generally, and Affidavits of Merit (as they are called in Michigan) specifically, are of real and specific concern for many of us. For my family, we too were victims of a "technical dismissal" because at the time of filing our case we were too poor to procure a "doctor's note" in order to proceed. Our case was dismissed. We appealed. The ruling was affirmed. We appealed to the Michigan Supreme Court. They refused to hear the case. We will, now, be filing out case with the US Supreme court next month.
Other notes: our case was deemed, by the trial judge, to be meritorious. We also filed, for reasons beyond our control, without legal counsel or, as they say, pro se.
We have continued our fight because of the specific injustice that has been served upon us--we continue our fight because we know, as we become aware of others, that has the same injustice served upon them.
I appreciate your story, and I thank you for it.
Posted by: Bill Jackson | January 09, 2012 at 01:28 PM