Under Utah law, all actions against medical professionals must be filed within 2 years of the date of the act resulting in the medical malpractice injury. Because of this limited time limit and in order to protect the rights of the innocent victims, a plaintiff’s attorney is often faced with the dilemma of whether to sue doctors who had limited contact with the victim and whose conduct may not have risen to the level that would suggest suit against them is appropriate. If an “innocent” doctor is forced into litigation, under those circumstances, that healthcare provider would incur significant costs to hire a defense attorney and prove his/her innocence.
A Utah medical malpractice reform bill that would limit who can be sued for medical malpractice, heads to the House after receiving support from both sides of the “litigation table.” The bill, as I understand it, introduces an independent case-screening panel to look at the fact situation and determine who, if anyone should be properly named as a defendant. It may seem unusual that trial lawyers, those who represent injured victims, would support a tort reform bill, but this one would help prevent unnecessary litigation against innocent doctors. This is no financial benefit to either plaintiff or trial lawyer in suing a doctor has is not responsible for the injury suffered. Contrary to the rhetoric of the US Chamber and the “tort reform” crowd, trial lawyers do not benefit from or support the filings of “frivolous lawsuits”. Trial lawyers only seek justice for their clients; politics (on either side) should never get in the way.
On the surface this law works to make sure that victims have a chance at justice against the correct wrongdoers; they ask for nothing more. However, history and skepticism in dealing with those who seek to enhance the profit margins of corporate wrongdoers suggests caution. Yet, it is rare that we have seen a “tort reform” measure supported by the plaintiffs’ bar. That’s because tort reform is never about the victim and always about protecting corporate wrongdoers. Sadly, in tort reform states, victims are rarely fully compensated while the medical malpractice insurers’ bank profits and doctors get away with figurative and literal murder. The unanswered question here is the constituency of the case-screening panel. An impartial, bipartisan, panel with professional on both sides of a case – doctors and trial lawyers – might be fair. If, however, the new law requires victims to plead their case to a group of doctors, hospital officials and insurance company representatives, I see a conflict of interest, a deck stacked against the plaintiff, and a typically bad piece of “tort reform” legislation. Time will tell; it is refreshing that bipartisan support was sought and achieved. But this writer remains skeptical; when it comes to medical malpractice and politics, a trial lawyer is usually left holding his nose.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.