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Reconstituting malpractice reform and the role expert witnesses
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Medical malpractice reform efforts have sought, among other things, to limit non-economic damages awarded to injured patients, so that medical malpractice insurance rates could be kept in check, and so that physicians can be attracted to practice in states with such limits.
Some states that had instituted caps on non-economic damages have reversed course and removed the caps. In a previous column, we discussed how the Missouri Supreme Court had set forth financial limits on non-economic damages and then reversed its own ruling noting that judicially mandated caps on non-economic damages were a violation of the citizens’ right to a jury trial.
Florida reverses damage caps
The Florida Supreme Court recently ruled that caps on non-economic damages in medical malpractice cases are discriminatory and violate the state constitution. The rationale of the court was unprecedented. It held that the original data upon which the legislature had initiated the malpractice reform legislation was invalid.
B. Sonny Bal
Lawrence H. Brenner
Florida enacted damage caps in 2003 when supporters said that the state faced a medical malpractice crisis, causing physicians to leave the state in droves. Justice R. Fred Lewis addressed this point, noting that during the purported crisis, the number of doctors in Florida increased. The court also cited evidence that malpractice caps had no effect on malpractice premium rates.
The Florida Supreme Court addressed a litigated aspect of medical malpractice reform, i.e., limits on non-economic damages. There are other aspects of reform that have not been challenged in any meaningful way. For example, most states require that prior to filing a medical malpractice lawsuit, the patient must find an expert willing to certify that the claim is meritorious. Other professional liability lawsuits such as those brought against attorneys, architects and accountants for professional negligence do not require certification of the merits of the claim.
While certain elements of medical malpractice reform such as non-economic caps might be justified in the narrow context of limiting the size of jury verdicts, and the pre-litigat ion certification can be justified as a check on the filing of frivolous lawsuits, there are much broader conclusions that derive from the special treatment of defendants in medical malpractice cases, in contrast to defendants in other professional negligence lawsuits. At some level, courts find it permissible to differentiate medical malpractice law suits from other personal injury lawsuits.
In recent columns, we have addressed the highly charged issue of erroneous expert witness testimony and whether strictures placed on such testimony by medical societies selectively target only the plaintiffs’ experts, leaving defense experts to testify as they please, despite whether they are supported by facts and evidence. If courts are willing to differentiate medical malpractice law suits from other professional malpractice claims, then should legislatures consider enacting reform that would fundamentally alter the role of expert witnesses in medical malpractice cases?
Paradoxically, the issue of expert witnesses, while contentious, is one where both the plaintiff’s bar and defense bar have agreement. Each party believes the opposing experts are intellectually dishonest advocates rather than offering objective opinions.
If malpractice reform were initiated to reconstitute the role of an expert witness, what might it look like? The function of the jury is to decide the ultimate issues, i.e., did the physician violate the standard of care and was that violation a proximate cause of the patient’s and injury? Every witness at trial is excluded from offering an opinion on these issues because it is solely the province of the jury to reach these conclusions. The one exception is the testifying physician expert witness who is allowed to speak to the ultimate issues that a jury must decide.
What if there was medical malpractice reform that prevented expert witnesses from offering any opinion on the standard of care or causation? The consequence of such reform would be that the only role of the expert witness would be to educate and jurors about the underlying medical principles that apply to the case, such as relevant anatomy and physiology.
The most obvious objection to the above proposal would be related to the jury’s ability to sufficiently comprehend the relevant medical issues. That objection can be addressed in an unusual way. In highly technical cases, such as patent infringement cases, “blue chip” juries can be empaneled. In the case of Calderon v. General Motors, the plaintiff brought a patent infringement suit in federal court alleging infringement of his patent for horizontally and continuously casting steel. At the federal judge’s request the attorneys for both sides agreed that the jurors would be selected from a blue chip eligible panel. The lawyers stipulated that any potential juror would have to have at least a Master’s degree. During the ensuing trial, the blue chip jury was allowed to ask the expert witnesses questions. This strategy was effective in preventing the experts from engaging in advocacy since the jurors were too well-educated to be persuaded by emotion or bias.
If malpractice reform limiting the scope of expert testimony were enacted in conjunction with a blue chip requirement for prospective jurors, it may address current objections to intellectually dishonest expert opinions. Experts could not offer any opinion that addressed the ultimate adjudication of the matter; instead, they would educate well-grounded jurors about the medical issues relevant to the litigation, leaving matters such as standard of care, its violation and relationship to the alleged physician misconduct to the jurors. In this model, how well each side succeeded in educating and enlightening the jurors to see their side of the argument would ultimately influence the verdict.
However attractive the notion of limiting the role of expert witnesses to jury education and requiring blue-chip jurors in medical malpractice trials, experience with similar efforts suggests that caution is in order. Such reforms, assuming they were constitutional or that the juror blue-chip requirement was a by-product of the parties’ stipulation, may not inure to the benefit of the medical community. Most jury verdicts today favor physicians and surgeons.
What do you think?
- Do you favor limiting expert testimony?
- Would you want to be judged in a malpractice case by a blue chip jury or a relatively uneducated jury panel?
- Do you believe that most plaintiffs’ experts are intellectually dishonest?
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Disclosures: Bal and Brenner have no relevant financial disclosures.