Medical Malpractice.  Now there's a subject to which you do not want to give a "rapid response".  However, since I have been writing on this and related subjects since the first "medical mal-practice crisis" in the mid-1970's, I feel less constrained.  (Please see the other offerings on this web site under the categories "Health Law", "Medical Mal-Practice Sweepstakes", and "Medical Errors").  In addition, the good set of articles embodied in today's Perspective section of The Day (the day.com., pC1) on this subject are a springboard from which to proceed.  Specific reference should be made to The Day Editorial ("Don't Rush Into A Quick Fix") and to the article by John Peter Bigos, M.D. (pC3).  All of the proposals in these two articles will have to be made part of any effective solution to the problem facing health care professionals and their patients.  Also laudable is the absence in these two offerings of the hyped importance of "caps on pain and suffering".  That is a much smaller part of the problem; and a $250,000 cap would be inadequate for the needs of both patient and representing attorneys, anyway.

As a physician and also as an attorney for many years, I have had numerous occasions to participate in medical mal-practice cases...as an expert witness and as co-counsel, for both plaintiffs and for defendants.  From this experience, the following are some observations to be added to the above proposals.  If the current level of debate on the subject reminds one of the three blind men charged with describing an elephant from three distinctly different vantage-points, the following may be considered the view from inside the belly of the beast.

• A potential case begins long before any mal-occurrence or mal-practice.  It begins with a gradual erosion in the doctor-patient relationship that leads to discontent and ultimate anger on the part of the parties.  All should avoid that...or one or both parties should end the relationship long before that occurs.
• The three attributes of a physician that are most important to a patient are ability, affability and availability...in reverse order!
• The following is difficult but important: any bad outcome, whether mal-occurrence or possible mal-practice, warrants a prompt explanation given to the patient, with every effort made - without charge - to ameliorate the situation.  And this should be done without threat of loss of insurance coverage by the insurance company alleging interference with its ability to defend a possible case.
• Alternatives to filing a court case, at least voluntarily at the outset, should be presentation before a medical mal-practice screening panel, such as exists in some states, and such as has existed in Connecticut Law since the late 1970's...without any use made of it at all.  Also, mediation and/or arbitration should be embraced by both patients and physicians as means to faster and more equitable resolutions.
• If decision is made to file a case, the filing attorney should be required to file - not only a Certificate of Good Faith Belief, as is now the law - but a certificate based upon the discoverable expert opinion of an appropriate physician who will also be required to testify at trial...which is not now the case.
• Both plaintiff and defendant should be placed under time-constraints, supported by timely access to court, to develop their cases and to go to trial.  Delays averaging 3-5 years are now Justice delayed and denied to all.
• Greater scrutiny should be placed by the Judge on the scientifically - based expert opinions offered by both sides.  "Schlock" medicine and its purveyors should be barred, and should be sanctioned where egregious.  That also means that health care professionals should consider it their duty to the public to be available as expert witnesses, except where clear conflict of interest exists.  This would be much better for all than the continuing "conspiracy of silence" still practised and tolerated by some in the profession.
• Judges should clearly instruct juries regarding the difference between "mal-occurrence" and "mal-practice", even apart from the "battle of experts", and should not tolerate sympathy awards not supported by the facts and the law.
• Health care professionals should take mistakes as experiences to learn from.  They should consider the insurance they pay for as part of their obligation  to "do no harm".  They should not take the accusation of mal-practice as a personal affront. If they believe it to be unfounded, they should defend themselves vigorously...and should also file counter - suits when appropriate.
• Mal-practice Insurance companies should be required to reveal all their financial practices that impact on the premiums they charge for levels of coverage, subject to modification by State action.  And they should be required by State law to market medical mal-practice insurance if they write any other kind of insurance in the State.  The justification for this intrusion in private industry is the central role that they play in the protection of the health and welfare of the society (under police powers and other theories).
• The public should be very careful about their health care, both preventive and interventional.  The excuse of "not knowing" no longer is tenable.  "For your health care, choose, don't settle".  And don't expect a medical national lottery to put Humpty-Dumpty back together again.  Remember: of the cases that are actually filed, over 70% are won by the defendant physician after the expenditure of vast quantities of time, money and emotion by all involved.  Furthermore, resort to some of the alternatives noted above...and even including an administrative mechanism like Workers' Compensation...could distribute a great deal more justice than is now seeing the light of day.

GS