The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
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Tort reform, in general, is controversial. Tort reform specific to medical malpractice, however, borders on the incendiary. The r eason, very simply, is that medical mal- practice is often the most personal and emotional form of litigation within the c ivil justice system. When any of us experience a vehicular accident, a slip and fall, or other form of bodily or property injury, the ensuing claims seldom strike at the heart of our self-es- teem, our personal identity, or our professional com- petency. Products liability claims, exceptional cas- es excluded, seldom result in an emotional breakdown within the ranks of a com- pany's shareholders or leaders. In contrast, medical malpractice cases, by their basic defi- nition, question whether "Dr. X failed to act as a rea- sonably competent spe- cialist acting under the same or similar circum- stances." When the rela- tionship in question en- tails trust, confidential in- formation, and the degree of intimate personal contact associated with a patient and physician relationship, no wonder both patient and physician approach medical malpractice litigation more sensi- tized to their respective "skin in the game" than they would if the discussion was truly "who ran the red light?" Moreover, when the case is finally over, more often than not, all litigants feel they have lost. Even worse, the experience seldom seems to have "en- lightened" either winner or loser. No other profession deals with the physical, mental, and emotional ills of the general population as extensively as doctors, nurs- es, and other medical personnel. Pain and suffering, in a cynical sense, are their bread and butter. Even so, a medical degree seems to many physicians to be the figura- t ive equivalent to a bulls-eye target. Lawyers, teachers, accountants, architects, ministers, and other professionals seldom e xperience claims, let alone lawsuits, simply from doing their job. Yet, l itigation tends to be an all too frequent reality for many practicing physicians. According to a study com- missioned by the American Med- ical As- sociation (AMA) in 2010, ap- proximate- ly 61 per- cent of physicians 55 and over have been sued, with an average of 1.6 claims as- serted against each physician. 1 Physicians practicing in several medical specialties – obstetricians/gynecologists, neurosurgeons and emergency physicians, to name a few – al- most never escape be- coming defen- dants at some point in their career. Case in point, the AMA study also revealed that doctors practicing in high-risk medicine are increasingly likely to be sued; about 50 percent of obstetri- cians/gynecologists under the age of 40 were party to a lawsuit, while 90 percent of surgeons 55 or older had been sued. 2 Does this mean – as a clear, unassailable statistical reality – that those professionals, who are not only the "best and the bright- est," but also have undergone the longest and most rigorous schooling of any other profession, are also a collection of incom- petents? In order for a plaintiff to prevail in a medical negligence action, he must con- tend failure of a physician's competence. The emotional stress of being sued does not stop after a physician has received his copy of the complaint and summons. Rather, it is a dread that pervades the prac- titioner's every day and may present in situ- ations similar to the facts in suit or simply by the receipt of correspondence or a phone call from counsel. We all know that litiga- tion in medical malpractice suits, even those that do not end up going to trial, can last for anywhere between two and seven years. Tag on an appeal or two, and a decade has passed – a decade of having both personal and professional accusations hanging over the physician's head. The length of time it can take to resolve even a relatively straightforward suit – which goes hand in hand with loss of control over one's emotional well-being – can be unsettling and unfa- miliar territory to defendant physi- cians facing their first malpractice action. Emotional strains are not the only by-prod- uct of malpractice litigation for a physician. Increasingly, a settlement or trial loss has several automatic consequences: the first is an increase for several years in insurance premiums, ranging upwards from a few thousand dollars to $20,000 or $30,000 a year. The second is being listed in the dreaded National Practitioners Data Bank, and the accompanying listing of settle- ments and losses in all future applications for and renewals of hospital privileges. A third is the even more dreaded Kentucky Board of Medical Licensure investigation, which has adopted a program of expen- sive "re-education" at an institution in Colorado – preceded or followed by li- cense suspension and/or other punish- ments. And, of course, given the explosion of damages that can be blackboarded in a 16 B&B; • 9.14 F E AT U R E : T O R T S A STUDIED APPROACH TO MALPRACTICE TORT REFORM: LONG OVERDUE By: Gerald Toner and Stephanie Caldwell POINT/ article continued on pg. 18