May 2018 Newsletter


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  • May 31, 2018

Maryland trial court attempts to redefine liability standards

Under consideration by Maryland’s highest court is a case that attempts to redefine professional standards of care – and negate the testimony of expert witnesses.
The basis of the case stems from a medical liability trial in which instructions provided to the jury deviated from well-established law on measuring standard of care as what a ‘reasonably competent’ physician would be expected to do, per expert witness testimony.
Instead, the jury was instructed to consider only what a ‘reasonable layperson’ would do – potentially warping how physician negligence is defined.
The Litigation Center of American Medical Association and State Medical Societies joined the Maryland State Medical Society (MedChi) and the Medical Mutual Liability Society of Maryland in filing an amicus brief that not only cited the likely increase in meritless lawsuits and implications for standards of other professionals in court, but also noted that experts must be relied on because medical procedures are not common knowledge.
“Letting juries nullify professional standards would upend the basic premise that professional malpractice claims involve specialized knowledge and duties that laypeople cannot assess based on their common knowledge,” the brief states.
A lower appeals court agreed that it was unlikely any member of the jury would be capable of giving medical judgement without the aid of expert medical testimony. The amicus brief urges the Court of Appeals of Maryland to hold up legal precedent, and existing liability statutes, and uphold the lower appeals court’s decision.
To read more about the threat this legal challenge places on liability laws across the country, click here.

Judge orders hands off Pennsylvania liability funds

An attempt to fill a budget shortfall in Pennsylvania with excess liability funds was deemed unconstitutional, ensuring physicians have access to liability insurance which in some circumstances might not otherwise be available to them.
In 2017, the Governor of Pennsylvania’s budget included a transfer of $200 million from the liability fund of the Pennsylvania Professional Liability Joint Underwriting Association in order to balance the state’s budget.
The problem? The fund is essentially a private organization – and transferring the money for budget purposes is akin to seizure by the government without fair compensation.
The Pennsylvania Professional Liability Joint Underwriting Association was created by the state in 1975 during an ongoing liability crisis. It currently insures about 250 policyholders, with the typical policy lasting one year and having a limit of $500,000 per claim and aggregate limits of $1.5 million for individuals and $2.5 million for hospitals.
The judge’s opinion emphasized the public benefit provided by the fund did not transfer it into a public function, and noted the importance of the fund in that it “assures availability of medical professional liability coverage throughout the commonwealth at no public cost.”
Click here to read more about Pennsylvania’s liability fund and the solvency of its budget surplus in the wake of the court’s decision.

Clarity on Minnesota expert witness review provides certainty for physicians

A panel of judges in Minnesota confirmed a defined window of time for expert reviews of liability cases, ensuring legitimate cases are moved more efficiently towards a resolution.
The Court of Appeals panel stated that alleged victims of medical negligence have 180 days to file after the start of discovery, which begins no later than 30 days after the defendant’s answer.
The ruling came following a challenge to the deadline that argued it should not begin running until the parties have had a formal discovery conference. The judges found that this would give certain plaintiffs an extension on the amount of time to search for medical experts and run counter to the origin of the statute, which was put in place to eliminate meritless liability lawsuits.
“It’s a decision that makes sense. You don’t have an unlimited amount of time to do the mandatory expert work,” said Mark Whitmore, an attorney for a physician who challenged a liability claim with an expert review filed after the deadline. “The decision by the Court of Appeals really reaffirmed that.”
The decision brings certainty for physicians who would otherwise be threatened with liability lawsuits long after any alleged claim took place, and making it difficult for those with rightful claims to reach closure.
To read the full article on the Minnesota Court of Appeals ruling, click here.