08202017Headline:

Boston, Massachusetts

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Ken Margolin
Ken Margolin
Contributor •

The Real Medical Malpractice Crisis

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Objectively viewed data leads to the undeniable conclusion that medical malpractice lawsuits are not skyrocketing in number, nor are they the cause of escalating insurance premiums for doctors. The malpractice insurers will continue their campaign to prejudice potential jurors by their repetition of the big lie of the evils of malpractice litigation. That crisis – the one invented by the insurance industry – does not exist.

Yet there is a medical malpractice crisis that strikes at the heart of our justice system. It is the reflexive willingness of many medical professionals to protect their own when malpractice has occurred. The circling of the wagons attitude creates a multitude of harms. A key harm is the loss of trust between doctor and patient. The sanctity of the doctor-patient relationship has ancient origins. A patient has the right to expect that his doctor will be honest in matters relating to his care. Trust is broken whether the doctor lies about his own negligence or has a convenient failure of memory regarding the actions of a colleague who was negligent.

The “curtain of silence,” as doctors’ unqualified protection of one another has been called, leads to alteration or destruction of records and other evidence tampering. It can prevent a derelict physician from facing up to his own weaknesses, thus putting other patients at risk. In a more subtle way, the curtain of silence directly affects the judicial process. Twenty or so years ago, before the insurance industry’s anti-lawyer public relations campaign, practicing physicians were willing to testify against colleagues who committed malpractice, because they believed it was the right thing to do. The insurance PR campaign has turned that noble instinct around.

Today, it is almost impossible to obtain an expert willing to testify against a physician practicing in the expert’s home state. In order to obtain qualified expert witnesses, attorneys are often forced to use expert bureaus, that charge a significant sum to locate experts willing to be involved in malpractice suits. Use of expert bureaus adds significant expense to the already crushingly costly prosecution of a medical malpractice action. The reluctance of the medical profession to aid injured patients in the legal process makes it difficult (though not impossible) for plaintiffs’ lawyers to recruit the most credentialed physicians to testify – such doctors are always available to the defense. When doctors are once again willing to challenge the conduct of their peers, including in the civil justice system, they will have taken a giant step toward ending the real medical malpractice crisis.