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New MedMal Legislation: Dr. Accountability v. Patient Justice

In an editorial published yesterday in The St. Petersburg Times, a doctor not surprisingly endorsed the accountability of expert witnesses who could testify against her in a medical malpractice case, while also endorsing the new law that weakens accountability requirements for doctors.

This is hardly a balanced or objective argument.

Dr. Madelyn E. Butler’s assertion that the new legislation “makes Florida a friendlier place to practice medicine” is tantamount to saying it’s now easier for doctors to make major medical mistakes in Florida that injure or kill patients, and not have to answer for them.

Her perspective is not surprising, given that she is President of the Florida Medical Association. It would not be far-fetched to believe that her opinion is influenced by politics and special interests.

If physician accountability creates a “dangerous medical liability climate,” what does the new legislation do for people who suffer catastrophic injuries or -worse- die at the hands of doctors who know their accountability has been limited? Is this not a more dangerous scenario?

Dr. Butler ignores the fact that the independent/conservative studies find that medical mistakes take the lives of 90,000 Americans each year and injure a million. What is most astonishing is that 9 out of 10 medical errors do not end up in a lawsuit or claim. How is it a dangerous climate to create a deterrence to mistakes and provide for compensation of those who are hurt by professional mistakes?

Dr. Butler claims that “Medical liability reforms such as HB 479 will make Florida a better place to practice medicine, positively affecting patients’ access to care.” She fails to see that care without accountability is unconscionable.

The reform indeed favors doctors, not patients’ access to responsible care or to their rights to justice.

By capping damages, the law only punishes those patients who have been most seriously injured by malpractice. By requiring out-of-state expert physicians to obtain certification, it punishes victims because in-state doctors can always find other friendly doctors to testify for them. The patients face a more difficult battle because doctors within the state are often fearful of testifying against other doctors or hospitals, since their livelihood (and reputation and referrals) could be damaged.

The law is bad for everyone except those hospitals and doctors who make mistakes that hurt patients.

Dr. Butler, a practicing OB-GYN, also omits the fact that most OB-GYNs refuse to carry malpractice insurance, thereby guaranteeing that the few who do will pay a huge amount. Insurance is about risk spreading, which is why if only 10 people in a county carry car insurance their premiums would be hundreds of thousands of dollars.

Let me end on this rhetorical question: Do you think it is fair to limit the recovery of a patient who is the victim of a wrong leg surgery… by a doctor who had performed ANOTHER wrong leg surgery just a year before?
I represented a client in just that situation.
Do you think the accountability of the Board of Medicine prevented the second wrong leg surgery?
Do you think that paying a fine and writing an article on wrong leg surgery is the kind of accountability that promotes a friendlier place to practice medicine?
And is “friendly” really what the citizens of Florida deserve or need?
How about safer and accountable?