By Charles A. Pilcher MD FACEP
As most Malpractice Bulletin readers have undoubtedly heard by now, the requirement that a plaintiff must have a “certificate of merit” to file a malpractice lawsuit was overturned by the Washington State Supreme Court on September 17, 2009. The requirement was ruled to unfairly discriminate against a specific class of plaintiffs, thus denying them equal access to the courts and “conflicting with the judiciary’s inherent power to set court procedures.”
The medical news was quick to jump on the ruling as a victory for plaintiff attorneys. I am not so sure. I have always felt that COM was a benefit to both defense and plaintiff, since a plaintiff might not file a suit if the chance of recovery were negligible.
In my 25+ years of doing case review for both plaintiff and defense attorneys, I have yet to see a case I would call “frivolous.” In fact, I have previously expressed concern that the economics of these matters discriminate against the plaintiff who is not injured severely enough to warrant a multi-million dollar settlement. In many small but obvious cases of physician negligence, cases where there may be only a few weeks of lost wages, a few more days or weeks in the hospital, a brief but uncomfortable period of additional discomfort, a second operation to fix the problem from the first, etc., potential recovery from a relatively small settlement may not be sufficient to warrant the time and attention of an attorney.
So where do we go from here?
Here’s a couple of things that could happen:
• More people will think they can now sue their doctors and will try to do it themselves. If so, they will have to either forego expert testimony and let the facts speak for themselves, or they will have to find their own experts.
• Attorneys will have to guess whether or not a case has merit and take their chances, or – not unlike the current situation – they may have more cases requiring more extensive review than simply asking an expert if the case has merit. (See above.) This might result in greater expenses for those attorneys and plaintiffs – and paradoxically less access to the courts – than under the previous system.
In theory, the Court’s ruling throws open the door to any plaintiff angry at his or her physician. Anyone can now file a lawsuit. But I find it unrealistic that the better plaintiff attorneys will be complicit in this. Because plaintiff attorneys need to be able to cover their expenses by winning a reasonable percentage of cases, they will not be the ones filing the frivolous lawsuits. If anything, it might be angry patients with no experience trying to be their own attorneys, and they are unlikely to prevail.
Yes, there will always be gray areas, and since we have no commonly used alternative, those cases go to court… and require expert witnesses.
And that’s the rub.
Attorneys are not alone in causing our (medicine’s) problems with our legal system. I believe that much of my profession’s animosity toward plaintiff attorneys should be redirected toward the “experts” within the house of medicine whom those attorneys are able to hire. There would be no “frivolous” lawsuits but for those physicians who are willing to sell not only their opinion but their soul, often for an outrageous fee. Without those experts, there would be no case.
And that’s the number one reason that I became involved in this medical case review and testimony, i.e., to provide attorney clients – and physicians – with case review that is governed by only one principle: I want to be on the winning side and play by the rules. To do so, I always ask myself, “Having reviewed this case, which side is going to win?” I want to be on that side.
What I’ll give you is an honest opinion. If you want something else, you can probably find it.
An interesting side note: Although not covered by the Supreme Court ruling, a physician issuing a Certificate of Merit under the now defunct law was not required to be listed as a plaintiff expert.
Two reader comments I received pre-publication:
- Personally I thought it was an unreasonable burden to place on one party and not the other. It restricted access to justice for many, and it sought to impose a solution where there was no problem. Around here, economics seems to act well enough on its own to filter frivolous med mal claims.
- The decision will not have a huge effect, except perhaps on those cases where the statute of limitations is imminent. As for frivolous medical malpractice lawsuits, I have never seen one. As you know these cases take a lot of money in upfront costs to pursue, often times more than six figures. I don’t know any decent lawyer who’s willing to front that kind of money when the case is frivolous or without merit. Perhaps these types of lawyers do exist, I just don’t know any.