02/19/2014    Barry Mullen, DPM

Alleged Improper Diagnosis, Informed Consent, and Improperly Performed Surgery (NY) (Elliot Udell, DPM)

Many comments have been made, but no solutions
have been offered! I agree with Dr. Udell about
the need to compensate legitimate malpractice
victims. BUT, current scales are grossly tipped
fostering the litigious climate we practice in.
The resultant, incessant fear grossly affects how
competent physicians practice and in part,
escalates healthcare costs. The solution starts
with the adoption and implementation of meaningful
malpractice tort reform. Here are ideas. Dialogue
is welcome.

1) Adopt a "loser pay" system (U.S. only
"civilized" country not to incorporate) = ends
frivolous lawsuits! The stumbling block is how to
protect the rights of indigent citizens victimized
by medical negligence. THAT is what I do not have
the answer for, but am confident some brilliant
economists can think tank.

2) Expert witness accountability- those who
testify MUST be held accountable to a set of LEGAL
standards which, if breached via false or
embellished testimony, become punishable by
license suspension, termination (for repeat acts)
and/or fines! What jurors need to hear is the
truth regarding the medical facts of a given case
from plaintiff AND defense expert witnesses!
Nothing more/less. This is such a simple concept
that I don't even know why it needs to be
mentioned, yet isn't enforced.

3) Create a professional panel comprised of 1
attorney and 2 specialists germane to a given
malpractice case to determine whether sufficient
evidence exists to prove negligence occurred
BEFORE a given case may be submitted to the
courts. PAY that panel and make their decision
binding. Why can't that salary be paid by a small
percentage of ALL the malpractice premium dollars
paid by physicians?

4) Without a loser pay system, pre-trial
settlements need to be reduced to a fraction of
what it costs to defend a case- I believe current
market is $ 60K to defend and have same panel
arbitrate that "award".

5) Objectivity utilizing economic expert analysis
of monetary awards levied to malpractice victims.
Malpractice awards are at staggering rates and
drive up premium costs. Ensure the compensation
matches the adverse sequellae created from a poor
medical outcome from gross medical negligence.

6) Lastly, and probably most importantly,
MANDATORY EDUCATION for repeat malpractice
offenders payable by guilty defendants! both in
performance of medical/surgical/diagnostic care,
AND patient interaction/communications. ie. after
3rd guilty malpractice verdict, one must re-learn
"how to practice medicine commensurate with my
specialty 101" AND re-learn "how to win friends
and influence people" to establish trustworthy
relationships with one's patients. If one refuses,
one's medical license is suspended until
completed....just like w/ driver's licenses. While
I admit some degree of luck is involved, SKILL
sets do exist to identify "bad" patient risks with
respect to malpractice potential. If a bad aura
exists and one senses it, sometimes one just has
to say NO with respect to the provision of medical
care for a given patient - that is YOUR right as a
physician. How many of us exercise it? I know I
do!
OH...1 last legal point- I feel STRONGLY that a
plaintiff's past malpractice history IS germane to
a case.

Well- that's a start anyway and is certainly not
all inclusive of the many malpractice issues
facing today's society and health care providers.
Now it's your turn to raise additional issues,
suggestions, concerns and solutions to take to our
medico-legal representatives to eventually enact.
If we don't, then we're just whiners forced to
accept the status quo which we all know is
currently...unacceptable.

Barry Mullen, DPM, Hackettstown, NJ,
Yazy630@aol.com

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