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Is Medical Malpractice Reform Working?

By Lindsay M. Sestile, Litigation News Associate Editor – December 16, 2009

The Washington Supreme Court’s recent decision in Putman v. Wenatchee Valley Med. Ctr. [PDF] has some medical malpractice practitioners questioning the future of malpractice reform in the country.

In Putnam, the court held unconstitutional a state law requiring a medical malpractice plaintiff to file a certificate of merit from a medical expert with the pleadings that begin his or her case. 

The plaintiff alleged that the defendant medical center and several of its employees negligently failed to diagnose her ovarian cancer. The plaintiff further alleged the delay in diagnosis caused her to miss the opportunity to undergo early treatment, which would increase her likelihood of long-term survival.

After the trial court dismissed her medical malpractice claim for failure to file a certificate of merit as required by Washington statute RCW 7.70.150, the plaintiff appealed directly to the Washington Supreme Court.  On appeal, she challenged the constitutionality of the certificate of merit requirement on several grounds, including that it unduly burdened her right of access to the courts. 

The court found that requiring medical malpractice plaintiffs to submit a certificate before they have the opportunity for meaningful discovery hindered their access to the courts.  Without the opportunity to interview healthcare workers or review procedural manuals—as afforded through discovery—the court reasoned it may not be possible to obtain the evidence necessary to obtain the required certificate of merit.

Putman as a State-Wide Trend?
Several other states have statutes similar to the merit certification rule struck down in Washington State. Although constitutional challenges may be forthcoming after the Putman decision, not even the plaintiffs’ bar seems to view those merit certification requirements as a detriment in practice.

“In Georgia, we have had a certificate of merit statute since the late 1980s,” says Erik H. Olson, Atlanta, cochair of the Medical Malpractice Subcommittee for the ABA Section of Litigation’s Health Law Committee.

“I have not found it an undue burden on my ability to bring medical malpractices actions because, by and large, the medical records tell the story. Once you have medical records—which every patient is entitled to even before filing suit—an expert can see a deviation from the standard of care through the records and sign off on the case,” Olson says. 

“In South Carolina, we have seen a reduction in the filing of medical malpractice suits with our similar tort reform statute.  On both sides of the aisle, most of us believe that our statute has resulted in seeing the marginal or frivolous suits disappear,” says Arthur E. Justice, Florence, SC, cochair of the Section’s Health Law Litigation Committee.

Justice does expect that most of these merit certification statutes will come under attack in the wake of the Putman opinion.  He wonders, however, how the presuit requirement differs from that under Rule 11.

“If Rule 11 requires an attorney filing a suit to have a good-faith belief that there is merit to the suit, how does an attorney’s ‘certification’ under that rule differ from the expert’s under merit certification statutes or rules?,” Justice asks.

Medical Malpractice Reform
Legislative reform aside, whether laws aimed at reducing medical malpractice actions serve to reduce medical malpracticeis up for debate.

“The ultimate question in medical malpractice reform is what are we trying to accomplish?  If, in fact, what we are trying to do is make the health care system better, shouldn’t we instead have a system set up to reward good medical care rather than limit accountability for substandard care?,” Olson asks.

According to many in the plaintiff’s bar, the healthcare and legal systems have done an inadequate job of getting to the root of medical errors and trying to prevent preventable medical errors.

Anesthesiologists are the exception, according to Olson.  In the late 1980s, they had the highest malpractice premiums in the profession.  They analyzed what could be done systematically to prevent errors and came up with guidelines that have proven tremendously effective in preventing errors and holding their malpractice premiums steady for the last 20 years, he says.

Olson also points to the “Sorry Works!” initiative embodied in the 2005 MEDiC Act (Medical Error Disclosure and Compensation Act cosponsored by then-senators Barack Obama and Hilary Clinton).  Although the bill died in Senate committee, organizations like the University of Michigan Health System have undertaken a version of the initiative. 

The premise is simple: When an outcome occurs that is unexpected, engage the patient or his family.  “The vast majority of the time, patients and their families are isolated, and nothing frustrates them more.  Tell them what happened and what you are going to do to fix it or prevent it in the future,” says Olson.

Doctors may be afraid to do this because it could be considered an admission of liability, Olson notes.

Under the federal “Sorry Works!” initiative, those conversations would have been inadmissible in evidence, he says.  Even without such protection at the University of Michigan, however, the health system’s version of the “Sorry Works!” initiative has resulted in the number of pending suits against it being halved.

Keywords: Litigation, health law

  • January 11, 2010 – interesting article to forward


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