Over the past few years, there have been a slew of new laws or rules designed to respond to the so-called medical malpractice "crisis" in our state. Indeed, there have been so many new provisions that it is sometimes difficult to remember them all. Let's take a moment and tally up the changes, starting with the new M-Care statute effective in March of 2002.
- M-Care statute, including provisions which eliminated the collateral source rule, tightened the rules on expert qualifications, permitted periodic payment of certain future damages, required reduction to present worth for future earnings, created a seven-year statute of repose, lowered the threshold for remitter; and reduced mandatory coverage from $1.2 million to $1 million.
- Venue rule requiring cases to be filed in the county where the negligent care was rendered.
- Certificate of merit requiring written statement in support of claim prior to filing suit.
- Abatement of M-Care premiums with subsidy from state funds.
- Remittitur rule further lowering the threshold for reducing or setting aside verdicts.
What all of these changes have in common is that they favor the medical providers, i.e., they either grant direct cash subsidies (abatement), or they make it more difficult for patients to obtain and hold favorable verdicts in negligence cases. In truth, the list could even be longer if one were to include the new joint and several law which, although not specifically confined to medical malpractice cases, certainly applies to them and makes life more difficult for malpractice plaintiffs.
Having watched our clients absorb these repeated "hits," and having winced each time a new level of protection was layered onto the defendants, I have come to ask myself two important questions. First, when is enough enough? When are we going to stop helping the doctors and hospitals and start enacting new rules or legislation which adjust some of the inequities faced by malpractice victims. For example, when are we going to get a new rule on additur to deal with the low verdicts so often foisted on patients in rural counties throughout the state? When are we going to get expanded or more meaningful voir dire to ferret out the thick bias against patients who file lawsuits against their doctors or hospitals? When are we going to see some more enlightened rules on damages in death cases? I do not know the answer to these questions, but I do know it is time that something be done for the patients!
The second question is this: What does the granting of this financial aid and/or legal protection to the medical folks portend about the future? Does it at last quench their thirst for relief, or does it merely whet their appetite for even bigger and better things? Stated otherwise, do they finally appreciate that the legislature and the state Supreme Court have tired to meaningfully respond to their "crisis," or does this plethora of changes confirm their long-held suspicions about a legal system run amuck and, as such, serve merely as a prolonged run-up to the ultimate prize, namely, caps on non-economic damages? I hope it is the former, but perhaps that is asking too much. Maybe the best we can hope for is that the legislature and the Supreme Court, if not the doctors, finally realize that enough is enough!