Guest commentary: For doctors, patients, malpractice trials should change

Scott Ross, M.D.

Recently one of my patients asked me for some personal advice — on whether the patient should terminate a relationship with another physician.

The doctor was in the midst of a nasty malpractice case, one publicized in the Daily News.

Although it may not be a matter of the case being “tried in the news,” it certainly is extremely difficult for a physician to have to read about himself or herself in the newspaper as a target in a malpractice case.

The old saying “Where there’s smoke, there’s fire” tarnishes the reputation of a physician before the evidence is presented.

I reassured my patient that the physician was one that I had always admired, had always been known to demonstrate a professional and caring attitude toward patients and was a skilled specialist. I suggested that the relationship should continue with the doctor.

Later that day, when I was alone with my thoughts, I had more time to contemplate the effect of this lawsuit on the doctor. A trial may or may not require the presence of the physician in the courtroom, but absence from the trial may lead the jury to feel that the physician is uncaring and aloof, and certainly might give the jury an impression that the physician would not wish to convey.

Under such pressures, most physicians choose to attend their trials. Their presence in the courtroom removes the doctor from the office, creates havoc with his practice and can devastate him financially. Staff must still be paid, lest they move on to greener pastures. And the patients still have needs. Who will treat them while the trial continues? And when can the doctor see his or her patients?

In this case, this may require the physician, already fatigued by the stress of the trial and time in court, to see patients at night and on the weekends — if his loyal staff and patients are agreeable to such an arrangement.

If the physician has a spouse and children, the stress of such a change in his or her life can create terrible difficulties, Â?

further magnifying the pressures created by the trial.

Under our legal system, we are innocent until proven guilty. In the case of a malpractice case, it almost seems as if we’re guilty and must then prove ourselves innocent. And no matter what the outcome, even if lack of guilt is determined, a high price will be paid by the defending physician.

I suggest changing the system.

In the case of non-criminal malpractice cases, I suggest we eliminate the trial-by-jury system. A trial by one’s peers is promised by our judicial system. Selection of 12 jurors with little familiarity in the nuances of the multitude of medical specialties and their respective technologies cannot be considered to be the doctor’s peers.

I propose a court trial carried forth in front of three judges with training and experience in medical issues. The defense and prosecution can present their cases succinctly, with expert testimony from both sides utilized. The doctor would only need to be present to answer questions from the judges, and the physician’s court appearance could be arranged at a scheduled time. This would allow the physician to maintain a practice and help significantly reduce the burden of the trial on the doctor.

The benefit of judges with at least some medical expertise should allow for reasonable and appropriate determinations of responsibility for damages. Trials would be more expeditious, as knowledgeable judges would need less background information to allow them to make informed decisions regarding guilt. Their expertise would allow them to start from a position of relative knowledge on medical issues.

Although the findings and decisions should still be made public, this could be done after the case has been decided, not before, so as not to try the case in public until the outcome is determined.

Damages and any necessary censure may be determined through precedent by the expert judge panels in a simplified and more predictable fashion.

Perhaps doctors could then practice medicine in a less defensive manner, more cost-effectively and with concern for their patient’s needs and less fear of litigation.

Certainly all physicians should be accountable for maintaining expected standards in their performance — but until they are found guilty of not practicing to the level expected of their profession they should not suffer the miseries the current system creates.
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