I am a retired anesthesiologist and was sued three times for malpractice. Two were frivolous, and one was for cause.
We had a serious malpractice crisis here in 2002. This led to a 200 percent increase in malpractice premiums, and all but one insurance carrier left the state.
Legislation was introduced to address this problem--the Civil Justice Reform Act of 2003--and some degree of normalcy returned. The number of malpractice suits decreased. Unfortunately, personal injury lawyers pecked away at the law, and it became ineffective.
The number of malpractice filings have recently increased, and we are again facing a difficult situation. If we do not address this again, the insurance companies will no longer cover physicians and may leave the state. That is why we need an amendment, not another law.
Most medical malpractice suits are dismissed for lack of merit. The practice of medicine is not perfect, and sometimes we do not obtain the outcome we hoped for. This is not considered malpractice. Yet due to massive advertising by trial lawyers, many people are misled to believe in jackpot justice: Let's sue the doctor and hope for a large settlement.
There is an aspect of Issue 1, coming before voters in November, that at first seems curious. The language is that this is an amendment to the Arkansas Constitution passed as Senate Joint Resolution 8. It would allow the Legislature, by a three-fifths vote, to amend or adopt its own initiated court rules of pleading, practice or procedure in all types of court cases.
Why is it in there? What does it have to do with malpractice? It would seem to make the amendment less attractive.
If a constitutional amendment is adopted, why is there a need to encumber it with protective details?
Is this a threat to the separation of powers? The lawyers certainly think so. The amendment would need protection or it would become useless, just as the previous attempt at tort reform did.
The crux of the matter is that we cannot trust the trial lawyers to be reasonable about attorneys' fees, non-economic damages, etc. They think of what is good for their pocketbooks rather that what is good for Arkansas. That is why they think the Legislature, rather than the trial lawyers, should decide these issues.
The states surrounding Arkansas have similar arrangements, with caps on non-economic damages and punitive damages. And the U.S. Congress can influence the Supreme Court. The idea is to tighten up the rules of litigation, such as affidavit of merit, caps on damages, and fees for attorneys.
There is another point of law I would like to address: expert witnesses. It seems logical to required that expert witnesses be involved in the same specialty as the the accused. I do not think it proper, for example, to obtain the testimony of a family practitioner in the case of of a neurosurgeon.
So it is imperative that Issue 1 be passed. Doctors want desperately to focus on patient care rather than looking over their shoulders for the next trial attorney.
If professional liability insurance becomes too expensive or too difficult to obtain, physicians will choose to practice in one of the surrounding states that have already made common-sense legal reform. If not addressed, we will have to go over all of this again in one, two or three years.
Finally, to whom do you go when you want medical advice? Ask your doctor.
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Richard B. Clark, MD, of Little Rock is a retired anesthesiologist.
Editorial on 10/12/2018