'Expert' witness is heart of med-mel problem

Special To The Miami Herald

Re: ”My view: Future of med-mal caps in doubt,” by Hector Lombana

Mr. Lombana would love to go back to the halcyon days

when attorneys made big bucks by milking the medical malpractice cow for all it was worth. Fortunately for physicians who practice here in South Florida, Mr. Lombana’s point of view as well as his facts are just plain wrong. I do a fair amount of expert witness testimony in this community, and as a practicing physician I’ve seen both sides of this debate.

Florida and South Florida, especially, are the most litigious areas in the country to practice medicine. There are more lawsuits filed here than anywhere else. Five years ago it was virtually impossible for physicians to obtain malpractice insurance at anything close to a reasonable premium. Why? Because there were so many bogus lawsuits and such high costs to defend these suits, malpractice carriers were cutting their loses and leaving the state. Insurance companies, just like Mr. Lombana, are in the business of making money.

The dirty little secret that the trial lawyers don’t want you to know about is the expert witness problem. The real crux of the medical malpractice issue has nothing whatever to do with insurance companies or the legislation; it has to do with professional expert witnesses. To file a malpractice suit, the lawyer has to find a doctor willing to say that the treating physician fell below the standard of care in the community. Where do you find these people? It’s easy; they’re all over the Internet, just like the escort services — but more lucrative.

In 2006, Debra Henley, the deputy executive of the Academy of Florida Trial Lawyers, wrote that expert witness reform is ”cockamamie” and ”another diabolical attempt by the Florida Medical Association to cut down on medical malpractice cases.” Why? Because they know that over the years they’ve gotten away with flagrant and malicious misuse of the tort system by getting virtually anyone with a medical license to testify.

I have personally seen many cases where the same ”expert” is a professional witness testifying all over the state. Trial lawyers will do anything to make sure no one deprives them of these prostitutes who make their living on the backs of innocent doctors. They have been united in opposing any reform of the expert witness system because that is, of course, the weakest link in the chain.

What’s the answer? There must be a radical change in the way medical malpractice lawsuits are allowed to proceed. First, all people calling themselves expert witnesses should have to register with the State. All suits they are involved in should be posted. This will provide transparency in the process and the immediate ability to see if they are prostituting or real practicing physicians rendering objective opinions. A panel of acknowledged medical experts in the field should review the case and decide if it has merit. These people should be blinded to the names of all parties involved. If there was negligence, then the suit should be allowed to proceed. If not, then it’s up to the attorney whether to proceed or not.

I doubt Mr. Lombana or his cronies are interested in these real reforms because they would provide the kind of transparency that threatens the ”business as usual” attitude that has long plagued the practice of medicine in Florida.

Dr. Jay Grossman is an assistant professor of clinical anesthesiology at the University of Miami Miller School of Medicine and director of Cardiothoracic Anesthesia at the University of Miami Hospital.
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