Monday, May 02, 2005

Med Mal legislation update

Here is a good state-by-state summary of pending/signed legislation regarding Med Mal.

The Arizona legislation is interesting to me because TN has a similar law. The constitutional challenge referenced is that some (the trial lawyers) say that the constitution leaves it up to the courts to rule regarding who can be a witness.

In TN, we have a locality rule in addition to the requirement that the expert be in the same field of medicine. It states that the physician must not only be in the same field of medicine, but must practice in a similar locality. So an ER doc from a huge referral hospital in Knoxville would not be able to testify against a doc from a small rural hospital. The courts threw this out long ago, arguing that small town patients should benefit from the same standard of care as big town patients, within the capabilities of the hospitals.

However, I am familiar with a doc who was sued for failure to give thrombolytics in a stroke case. In a malpractice case, the plaintiff needs to establish deviation from standard of care and that the deviation caused the injury. So the plaintiff needs a standard of care witness (required to be in the same field of practice) and a causation witness (not necessarily in the same field.) The plaintiff was unable to find an ER doc (that they could afford) to testify against the defendant and, as such, should have been unable to demonstrate deviation from standard of care. However, they had a neurologist testifying for causation and the judge allowed him to testify to standard of care.

In my role advising the defendant's attorney, I suggested that they challenge the neurologist's claim that he understood SOC because of the patients he saw referred from the ER. My argument was that you can't define SOC by who gets admitted or referred, but you have to understand and appreciate the screening process. This means that you also have to be familiar with the numerous patients who are discharged from the ER without referral to a neurologist or the patients who are admitted to primary care docs and are not subsequently referred for neurology consultation. This is exactly the purpose of the requirement that the experts practice in the same field of medicine.

That case didn't make it to trial, as the plaintiff voluntarily dismissed. But the defendant's lawyer was eager to take to the the state supreme court for clarification. So dismissal was good for the doc, bad for the lawyer.