A Conversation About Medical Malpractice

Bruce G. Clark participated in a panel discussion on medical malpractice insurance sponsored by the New York State Bar Association. The transcript appears in the New York Health Law Journal, Fall 2009. To review the discussion in its entirety, please click here.

The following is an excerpt from the article (reprinted with permission from: Health Law Journal, Fall 2009, Vol. 14, No.2, published by the New York State Bar Association, One Elk Street, Albany, New York 12207 [1-800-582-2452], http://www.nysba.org):

Bruce G. Clark: Let's look at what has happened in medical malpractice law in recent years, the statute of limitations was reduced from 3years to 2 1/2 for adults and from 21 to 10 years for children, the fee for plaintiffs' attorneys has been reduced from one-third to a sliding scale that goes down to 10%, then the medical malpractice panel was introduced. And that was a panel in which there was a doctor, a lawyer, and a judge. And if they were unanimous in their findings of either liability or non-liability, that could be mentioned to the jury.

We found that the findings of juries tended to be almost diametrically opposite from the findings of the panel. The panels also ended up in delaying malpractice cases, the resolution, for years, sometimes seven or eight years, because they were waiting for a panel. In Suffolk County, one law firm represented most of the doctors, and it was impossible to get a panel that did not have any kind of connection with the Wortman law firm.

So that was another reason why the panels did not work and where special malpractice courts, as it were, in microcosm was not a functional system.

As a practical matter, right now we do have malpractice courts. If you go to New York County -- and in almost every county -- there's a select group of judges who are the brightest, the most experienced judges, who have experience and who are qualified, who are assigned the malpractice cases. Malpractice cases don't go to the new judges, the uninitiated, or the judges who don't know what the law is. So we do have malpractice cases being tried in malpractice courts by judges who are competent.

Most plaintiff's attorneys will not bring cases in the federal court because, while it might be a few months less processing time, to bring a case in the federal court results in probably twice the expense it takes to bring in the state court. Moreover, each federal judge has her own case load, including criminal cases. It is not uncommon for a federal judge to give a "rigid" schedule for the prosecution of the case with a definite trial date, only to have the judge start a 2 month criminal trial the week before the malpractice case is to be commenced. It is also very rare to find a federal judge who had any experience with medical malpractice cases before ascending to the bench or who has presided over medical malpractice cases as a judge.

Clinical practice guidelines, that's what medical malpractice is. If a doctor departs from the accepted standards of medical practice in treating a patient, that is malpractice. Negligence in medical malpractice is a departure from the accepted standard or departure from the practice guidelines. Regularly in the trial of these cases we'll look at the standards of the American College of Obstetricians or the published standards of other specialties as guidance. Paradoxically, an expert witness, on direct examination, cannot support her testimony by referring to a publication, be it a standard published by the specialty board or a learned treatise or article in a medical publication. The expert can, however, on cross examination be confronted with those publications in an attempt to impeach the expert's testimony on direct examination. The federal courts allow publications to be admitted into evidence. In my opinion, the state practice is more likely to result in a better verdict. As far as I am concerned, the system ain't broke and it doesn't need fixing.