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PA Physician Calls for Medmal Reform

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Jury Reform for Medical Malpractice Litigation- Commentary provided by Attorney Engle of Shaffer & Engle Law Offices, LLC

By Robert Ettlinger, MD, Vice President

Medical malpractice liability is covered under the field of tort law, in that it is not contractually or criminally based. This system allows patients to have appeasement for their perception of medical negligence and to receive justice (generally in the form of renumeration by an insurance company) as correction of their damages. It is also seen as being a deterrent, for physicians to have a sense of enhanced responsibility to provide good quality medical care. Paradoxically, while errors of omission are seen as being negligent, the practice of physicians "doing all they could" leads to damage by commission, with resultant costs of patient harm and higher health care spending.

As an effort to quell the specter of malpractice litigation, some have suggested that in-court litigation be preceded by review of a panel of experts. If this panel, appointed by a party such as the Governor or the higher echelon of Pennsylvania's judiciary, deemed the case to have reasonable merit, it would then move on to review by a judge after pre-trial discovery. This would have the effect (beneficial mainly to the defendant health care party) of eliminating "frivolous" cases, and of encouraging lower cost settlement of plaintiff complaints rather than moving on to full trials. Alternately, some have suggested that juries in medical malpractice cases be compelled to contain at least one "medical expert" to advise the remainder of the lay jury in evaluating the scientific technicalities of the malpractice issue. Are these proposals viable as goals of organized medicine?

Based on analysis by local attorney Jeff Engle (who was featured on Fox News), they are not likely to come to fruition. Article 1, Section 6 of Pennsylvania's Constitution states that trial by jury is an inviolate right (later elaboration of this clarifies that the requested damages must exceed $50,000). To change this requirement would necessitate a constitutional amendment, to be approved by a 2/3 majority vote of both the House and the Senate, then approved by the Governor. No great groundswell of sentiment for doing this exists, not because of any disdain on the part of the Legislature for the medical profession, but more for the multitude of philosophic reasons (based on the English tradition of law) why a jury trial is an ethical right. As a means to avoid the presentation of cases to the judiciary that lack legitimacy, the Legislature did pass a law (effective as of 2008) that plaintiff attorneys must obtain a certificate of merit before getting approval from a judge for in-court litigation. This mandates that a reasonable expert witness (often, but not always, in the same medical specialty as the defendant) attest that medical negligence truly did occur, in concordance with the allegations of the plaintiff patient. This law has been lauded as being beneficial to malpractice reform by placing a mandate on plaintiff attorneys to have a valid body of proof to continue their litigation processes.

As for the proposal to mandate that composition of a jury contain one or more jurors discerning in the technical nuances of a malpractice litigation process, this also would be hard to achieve. In the case of "Batson vs. Kentucky" over twenty years ago, the Supreme Court ruled that jury selection could not qualify or disqualify candidates based on their race, religion, or gender. This decision has appropriately been used as an argument to continue to strive for juries that represent a cross section of the community, and that they not be chosen during the jury selection process of voir dire in a way that would skew their impartiality. Finally, the inclusion of an expert in a jury would then obviate the need for expert witnesses and would, thus, prejudice a jury just as comparably as would a completely ignorant juror.

Thus, the goal of malpractice litigation reduction in Pennsylvania lies with the time-honored efforts to improve the quality of medical delivery, improve patient-physician communication skills, and to legislate fair compensation formulas for verdicts of negligence.

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