Separate courts be designated to medical negligence cases

Understanding the law of expert testimony in your state may be important if you are involved in litigation

Dr Imtiaz Ahmed Wani
Srinagar, Publish Date: May 24 2018 11:16PM | Updated Date: May 24 2018 11:16PM
Separate courts be designated to medical negligence cases

There are hundreds of Medical Negligence cases coming up every day in Consumer Forums across the country. And in many a case, expert opinion or expert evidence is not being adduced simply because of technical glitches. Our system of adjudicating medical malpractice cases is often called "the battle of the experts." Each side finds an expert to support its view of the case. With respect to the emergency physician, testimony should be supported by emergency medicine literature. Often, however, opinions are divided. That opinion from a body of experts is needed in all the cases since each case has to be decided on its own merits and intricacies it is best that a separate set of courts be designated to Medical Negligence cases. This would provide a twofold benefit. Firstly, it would benefit the patient since he will have a specific forum and a specific remedy. It will save his precious time and money for the victims of medical negligence cases who often are persons from weaker and downtrodden sections of the society. Secondly, it would be beneficial on part of the Medical Professionals as well. The court would comprise Expert Medical Professionals and they would be able to fully understand the technical complications and intricacies related to a particular medical case. Being panel members adjudicating claims of medical negligence will put an added obligation to judge the cases on an impartial objective criterion as compared to medical experts merely giving expert evidence in a court of law where they might tend to give a favourable opinion for the fellow colleague being proceeded against him.

There is no established standard of care in use of some drugs or procedure in certain drastic situations. Medical expert laws can change this, however, because they allow experts from other specialties, such as,  specialists or super-specialists to testify against the emergency physician. Yet the true standard is that of emergency medicine, not another specialty. One major problem in any legal defense is that it is rare for restrictions to be placed on the specialty of the testifying expert relative to the physician on trial. In fact, less than one-third of the states have such a requirement.

There may be fairly broad support in the super speciality in use of certain medicine or procedure in literature, and it is often a  specialist or super specialist who testifies as the plaintiff's expert at trial in such cases.Therefore, in the case of failure to administer drug or procedure by an emergency physician, a specialist, super specialist could easily testify that the medical literature clearly supports the use of drug or procedure  for all qualifying patients, and failure to use it is a deviation from the standard of this care. This is persuasive when weighed by a jury, particularly when a  victim is sitting in the courtroom.

This presents a danger to primary care physicians, because in most jurisdictions it is the physician who has the most expertise in a certain type of injury who will testify about what should or should not have been done in the case. Does that mean that an emergency physician will be held to the standards of all specialists? In this type of system, it may mean exactly that, even though it is neither a reasonable standard nor the true standard for the emergency physician.

To prevail, an "expert" must testify and a jury must be persuaded. The expert opinion may support an inappropriate standard of care. A jury is not necessarily equipped with the knowledge and background necessary to understand the science and medical issues of the case. Yet the jury is tasked with the difficult job of determining which opinion is most persuasive and "correct." Such decisions are made based on several factors, including the charisma of the expert witnesses and whose argument is easiest to follow. Sometimes, sympathy for the plaintiff, regardless of medical opinion, compels the jury to "help the victim."

Understanding the law of expert testimony in your state may be important if you are involved in litigation. Fortunately, the trend is toward requiring the expert to be within the same field as the physician being sued; there may even be a requirement for practicing within the same state. Such reforms will benefit all emergency and primary care physicians, and they allow the juries to have the correct standards of care when making difficult decisions.

 

Dr Imtiaz Ahmed Wani is Surgeon Specialist, DHS, Kashmir

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