A Medscape survey found that physicians favor expert medical panel that screen claims for merit before they proceed in court more than any other kind of tort reform.
The survey included almost 4000 primary care physicians and selected specialists.47% of physicians said they were named in a lawsuit that included other defendants and 12% said they were sued as the sole defendant in the case.
The most common allegation made by malpractice plaintiffs are failure to diagnose and patient suffered an abnormal injury.
81% of physicians cited pretrial screening panels as one of the best ways to discourage malpractice suits. Conversely 62% who chose caps on noneconomic damages and 48% who said cases should be tried in special health courts.
Screening panels are designed to examine non-meritorious claims and avoid expensive court battles. A panel ruling in favor of a physician does not bar a patient from seeking his or her day in court. However, in most states, a defendant can introduce the opinion as trial evidence. Panels have at least one physician member.
About 2/3 of states have adopted pretrial screening panels at some point in the last 40 years. Successful constitutional challenges have whittled down that number as have outright repeals by state legislatures.
Panels are popular among physicians. However, the evidence for their effectiveness in achieving any of the purposes for which they were set up is nonexistent. One reason evidence is lacking is because it is hard to screen out cases at an early stage because more discovery is often necessary to get a real sense of what has happened.
Panels can throw out obviously frivolous cases, but those tend to be the minority.
Another tort reform is banning lawyers from taking malpractice cases on contingency. Only 37% of participants in the survey named this as a good deterrent to lawsuits in the Medscape survey. Another 13% said physicians should stop making medical errors in the first place. The small percentage of physicians who answered that way reflects the prevailing opinion in the profession that a dysfunctional legal system, not medical error is the primary driver of malpractice litigation.
Here's my take on this and I'll share with you what happened in New York when we had medical malpractice screening panels...
In the late 1980s in New York there was pressure to establish medical malpractice panels in an attempt to try and weed out “frivolous” cases.
These medical malpractice panels would consist of a doctor, a lawyer and a judge.
Each side would have an opportunity to prepare extensive sets of documents in support of their side.
Copies were required to be presented to each one of the panelists and your opponent.
Then, there would be oral argument from both sides.
After oral argument, the three panelists would vote to see whether or not they found there was malpractice or they were unable to reach a decision.
I should tell you that as a young attorney beginning my career representing doctors and hospitals who were being sued, preparing for these medical malpractice panels was extremely time and resource intensive. I would spend weeks preparing our argument, collating the medical records and then submitting them to the panelists before oral argument.
In most cases, the panelists were a hot bench.
That meant that they were familiar with and had read all the papers that were submitted.
That meant they were making an educated decision about whether there was malpractice or was no malpractice.
However, in New York the findings rendered by this medical malpractice panel did not end the litigation. It was simply additional ammunition for one side or the other to use at the time of trial.
What that meant was that the case would often proceed to trial.
During the course of trial each side had an opportunity to use the panelist's findings in their favor to support their claim.
There were even attempts by some lawyers to subpoena the different doctors who appeared on these panels to get them to testify about their opinions and their ultimate findings.
This was hotly contested and unfortunately, took up a great deal of time and energy that got us nowhere.
The trial judge would be required to give the jury detailed instructions on the meaning and significance of the panel findings.
You might think that the jury would defer to a distinguished panel comprised of a judge, a doctor and a lawyer.
Sometimes they did. Sometimes they didn't.
The bottom-line is that these malpractice panels were ineffective.
They failed to achieve the lofty goal of weeding out cases that did not have merit. They became highly polarized confrontations that achieved very little when implemented at trial.
Thankfully, the New York court system abolished medical malpractice panels in the 1990s and they have not been resurrected.
These medical malpractice panels were a boon for defense law firms who would eagerly and gladly ring up enormous amounts of hourly billing for their time, effort and energy they put into preparing for these malpractice panel arguments.
From the plaintiff's perspective, although it was effective to condense our argument prior to trial in anticipation of these malpractice panel arguments, it would be a constant uphill battle especially if the malpractice panel decided against us.
The argument raised in this article that most physicians favor malpractice panels is the same one that was made 25 years ago.
There have also been proposals that these malpractice panels should only be made up of physicians in the same specialty as the one being sued.
While this might be another lofty aspiration, implementing it is far different.
Trying to get impartial specialists in the same medical field to be brutally honest and have no agenda is extremely challenging.
Physicians who participate in these panels become extremely jaded. They are often conflicted between trying to look out for their colleagues and at the same time trying to enforce the appropriate standard of care.
In my experience, having had the benefit of practicing now for 27 years here in New York, I can tell you that from my own personal experiences with medical malpractice panels and having argued many of them early in my career, I found them to be ineffective for both sides.