Medical Experts in Personal Injury Cases-Tort Reform, Part III

This is Part III of a three part series.  If you missed the previous posts, check out Part I and Part II to catch up and learn more about tort reform.

In this series wrap up, we will address some of the “back door” ways that the legal and medical professions are using to try and limit malpractice suits from ever seeing the light of a courtroom.  We will also review the role of nurse life care planners and medical expert witnesses on both the plaintiff and defense sides of the aisle.

 

According to a recent MedScape article: “One of the most successful ways to control and diminish medical malpractice suits involves limitation of experts who can testify. This phenomenon, which occurs by legislative action, has remained largely unreported, but it is a method that is gaining in popularity in some state legislatures. There is a risk that state supreme courts may overturn these efforts, but continued efforts in this direction hopefully will prevail and lead to fewer medical malpractice suits.”

This raises the question of ethics concerning yet another means of preventing citizens from getting their day in court. A further side effect is that of the medical field’s sweeping errors, omissions and general malfeasance under the rug. If statistics demonstrating the need for stricter oversight and reporting are reduced, medical malpractice suits could potentially be seen as declining.  Statistics demonstrating a reduction of the numbers of suits brought would make those that don’t do their homework assume that the medical field is successfully policing malpractice, when the opposite is true.

Attorney Max Kennerly emphasizes the need for expert testimony: “… many states… don’t allow trial lawyers (whether plaintiffs’ or defendants’) to recommend specific sums of money to the jury. You’re allowed to introduce as evidence bills the plaintiff incurred (medical bills, funeral expenses, etc). You can have doctors, nurses, and life care planners talk about the cost of future medical care. You can even have an economist get up on the stand and give ranges for lost wages and the impact of inflation, but you can’t just tell the jury how much you think all of that adds up to.”

He continues:  “I don’t have the slightest doubt that jurors are completely confused why the lawyers keep throwing around monetary figures and yet, when it comes to the case as a whole, the lawyers skirt around the issue of money (because they’re not allowed to) and start talking about justice and fairness and other off-putting banalities. The jury never hears how much the plaintiff believes their “pain and suffering” is really worth, they just have to figure it out on their own.” Given these restrictions, one would have to figure that expert testimony would give a jury at least some idea of the monetary “value” of the level of pain and suffering that would be commensurate with institution/practitioner irresponsibility and the level of prior and future expense.

In the article, Nancy Fraser presents a fair and balanced summary of the NLCP’s contribution at trial: “…life care planners serve a special role in personal injury cases and must be consummate medical experts. Life care planners estimate the level of ongoing care that an injured plaintiff will need if the plaintiff was disabled in such a way that necessitates many more years, or even a lifetime, of medical assistance. Because a plaintiff is entitled to be compensated for all medical costs arising from an injury caused by a liable defendant, a plaintiff should be able to collect the full amount of medical costs that will be necessary for the rest of his or her life. A life care planner will be responsible for determining what that ongoing care cost will be. As a result, the plaintiff isn’t left high and dry without the ability to provide for later care, and a defendant doesn’t get stuck paying for a lifetime of treatments that aren’t really necessary after all.”

Related articles

• Opinion: Why Tort Reform Won’t Solve the Healthcare Cost Crisis(wnyc.org)

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• Arkansas Supreme Court Strikes Down “Tort Reform” Law(blogs.lawyers.com)

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• Is Comparing an Expert Witness to a “Wizard Baffoon” Fair Game in an Injury Trial?(bc-injury-law.com)

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