May 2018 Newsletter

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…

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April 2018 Newsletter

Improving patient care by removing threat of lawsuits In an effort to better understand the impact that medical lawsuit abuse has on health care providers, a recent study granted immunity from liability lawsuits to practicing physicians – and studied the after affects. Over the course of six years, 900 clinically active employed physicians at Jackson Memorial Hospital, part of the University of Miami, could be deemed agents of JMH and received the protections of sovereign immunity when they were providing medical care at a JMH facility. Not only was there no negative impact on patient safety, but the number of harmful events decreased by 13 percent over a four-year period. “This study suggests that without the threat of malpractice lawsuits, physicians are still committed to delivering the safest, highest quality patient care possible,” said Dr. David A. Lubarsky, chief medical and systems integration officer at the University of Miami Health System and the study’s lead author. The immunity offered physicians an opportunity to treat patients without the threat of liability lawsuits, reducing the incentive to practice defensive medicine. “An effective liability system should offer incentives to institutions that adopt safer systems,” Dr. Lubarsky said, citing better patient data sharing, education,…

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March 2018 Newsletter

Bad examples: New York, Pennsylvania lead national liability rates Without reform to keep medical lawsuit abuse in check, examples of the inefficiencies of our nation’s liability system are emerging in several states in the form of increasingly large payouts. According to a recent survey by Diederich Health Care, a medical liability insurance and consulting company, New York topped the list for the largest liability payouts in 2017 with a total of nearly $618 million, with Pennsylvania second at $342 million and Illinois not far behind with $301 million. What do these states have in common? None have reasonable limits on non-economic damages in place, with liability climates that have worsened in recent years due to lawmakers who are more likely to push for changes that benefit personal injury attorneys rather than patients. In New York, 30,000 members of the Medical Society of the State of New York opposed extending the state’s statute of limitations on liability claims because it would increase their already high liability costs and drive more doctors out of the state. Unfortunately, the law passed, lengthening the statute of limitations from 15 to 30 months, beginning not when the error occurred, but the date at which the…

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