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Federal bill includes troubling medical malpractice provision

In a medical malpractice lawsuit, expert testimony is often crucial for plaintiffs. Typically, the experts giving testimony are fellow medical professionals with substantial experience in the same field as the doctor being accused of negligence. Through their testimony, they attempt to show that the defendant failed to meet the standard of care which the patient was supposed to receive.

Establishing and meeting standards of care are obviously important in health care, which is why such standards are increasingly being tied to doctor pay. Government insurance programs like Medicare and Medicaid as well as provisions in the Affordable Care Act have set clear goals of paying doctors based on quality and value rather than just the number of services provided.

A bill currently making its way through Congress would establish an evaluation of doctors on the quality of care they provide and then assign them a score between zero and 100. These evaluations would likely be very beneficial to a patient attempting to build a medical malpractice case against their physician. Unfortunately, many legislators don't want this to be an option.

When the bill passed the House of Representatives late last month, it included a provision prohibiting quality-of-care standards and scores (in federal health programs) from being used in medical malpractice lawsuits. This seems to be the work of lobbyists on behalf of doctors and insurers. According to the New York Times, "the provision is nearly identical to legislative language recommended by doctors and their insurance companies."

Is there a reasonable argument for why such standards should not be used in medical malpractice lawsuits? Some proponents of the bill say that the government standards would be based on what might be right for groups of patients with a particular condition, but individual doctors might believe that a specific patient needs a different treatment.

But is this a reason to ban use of the standards altogether? An insurance law professor quoted by the Times said: “Why wouldn’t you want to take these guidelines into consideration? They indicate what a reasonable doctor does and should do, just like guidelines adopted by a medical specialty society.”

Tort reform laws and other legal hurdles already make it more difficult than it should be for patients to hold their doctors accountable for negligence. Let's hope that this provision does not become yet another obstacle.

Source: The New York Times, "House Provision Offers Doctors More Protection Against Malpractice Suits," Robert Pear, March 30, 2015

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Breslin and Breslin, PA, Donald A. Caminiti, Esq., was one of six law firms selected by the Attorney General of the State of New Jersey to act as special counsel to represent it in its lawsuit against the tobacco industry to recover Medicaid and other health related costs incurred by the state resulting from tobacco related illnesses.