Local statutes must be consulted for restrictions that apply to actions against health care providers. Many States have enacted special medical malpractice statutes as a response to what some contend is another "medical malpractice crisis." The draconian and punitive requirements of these statutes must be satisfied before a medical malpractice plaintiff can get his or her claim before a jury. Such "Tort Reform" has resulted in any number of attorneys who specialized in medical malpractice lawsuits being forced into abandoning this area of law. It is all but impossible for a patient injured by the medical community to find representation in any number of States that have enacted such legislation. It has simply become too expensive to pursue and the burden of proof now required  by such rules all but impossible to meet. (see - The Daubert Standard and The Frye Standard of proof)

There are several types of statutes. Some require arbitration; most create a special panel to screen claims (a few combine both to form a hybrid arbitration panel), and most if not all place a limit on the amount the patient may recover. There are also numerous miscellaneous provisions that are clearly bias toward the plaintiff while grossly favorable to the defendant. It is impossible under these statues for a plaintiff to proceed with a frivolous claim. The plaintiff must first, prior to even filing such a suit, prove by the testimony of expert witnesses that malpractice did indeed take place.

In some states, it is necessary to study court rules as well as the statutes that have been enacted, and in others the special law applying to medical malpractice cases is a procedural rule without an accompanying statute. It has been argued that these laws will benefit the public by helping keep down costs of health care, and perhaps further by persuading certain health care providers to continue to provide services that they might otherwise abandon due to high insurance premiums or the unavailability of insurance coverage. But this simply has not proven to be the case. It has only resulted in the plaintiff being deprived of the right to have claim determined by a jury. As such one questions whether these laws are always in the interest of the injured patient, whose rightful recovery has now be limited or even as found in most cases, made mute, and whose financial burden even be increases by pre-litigation procedures or other requirements.

A few of the statutes or parts thereof, have been declared unconstitutional, while others continue to undergo court challenges. Most States have placed limits on the amount a plaintiff can recover in actions against health care providers. In California, non-economic and non-pecuniary damages are limited to $250,000. Also, California law allows the periodic payment of judgments in excess of $50,000, and the courts must permit the introduction into evidence of collateral sources of compensation received or to be received by a medical malpractice plaintiff from insurance policies, social security or otherwise. Furthermore, there is a restriction on attorney fees: in a medical malpractice case, a contingent fee cannot exceed 40/% of the first $50,000 of recovery, 331/3/% of the next $50,000, 25/% of the next $500,000, and 10/% of any recovery beyond $600,000. Many other States have followed this example set by the State of California.

Arbitration as a means of disposing of medical malpractice claims is advocated by many as the best solution. In most cases, however, a malpractice case cannot be decided justly without the total factual information, and this information is only going to be brought out by way of judicial discovery procedures-mainly through the taking of depositions. In arbitration, the plaintiff may not have "full rights" of discovery. Under the usual arbitration scheme, the malpractice plaintiff appoints one arbitrator and the physician or hospital appoints another. These two arbitrators then select a third. This system is fraught with difficulty. In the beginning, there is the natural tendency for both sides to select biased arbitrators, and malpractice plaintiff's attorneys and insurers soon learn who these are. Thus, the die is cast. Then, difficulty is encountered in selecting the third or allegedly "impartial" arbitrator. Weeks, months, and even years can go by before the arbitrators actually arbitrate. (Arbitration, it is argued, is supposed to speed up the process.)

However, once again this found not to be the case. When, finally, arbitration does begin, for some reason there is a tendency on the part of the participants to slack off on their preparation. Investigation is minimized and often a "slap-dash" presentation is undertaken by both sides. Now, suddenly, time becomes of the essence, and the arbitrators become more concerned with expediency than with justice. In certain minor medical malpractice cases perhaps arbitration serves a worthwhile purpose. In a substantial case, however, it is doubtful whether this method of resolving disputes can accomplish justice for the parties. The plaintiff's medical malpractice lawyer will screen cases and accept only those that are worthwhile. (In most States, the lawyer must certify that he has reviewed the matter with a qualified physician who states that the case is "meritorious.") Hence it is all but impossible to even find legal representation for a frivolous action.

True medical malpractice consists of negligent conduct that causes damage. There may be "malpractice" from a theoretical point of view, but if the conduct has not caused injury it is not a matter for the legal system. Sometimes there may be true "malpractice" but no residual damage. These are not strong cases. Juries are not all interested in a past history of damage they do become interested when a plaintiff can show permanent injury. Most medical malpractice cases for the plaintiff are handled on a contingent fee basis. Ordinarily this ranges from 331/3 to 50% of the recovery after costs are deducted "off the top." Meaning based upon the gross award, prior to the deductions for cost and re-imbursement for the benefits paid by the plaintiff's insurance carrier. In reality the plaintiff's attorney keeps the majority of the award, followed by the insurance carriers and cost. Little if anything is left over for the plaintiff. There has been any number of cases where the plaintiff is left with nothing once it is all said and done.

Medical malpractice cases are such that usually there will be no settlement, nor even negotiations toward settlement, until the lawsuit has been filed and all essential depositions have been taken. In most well prepared cases, there is virtually a trial through the discovery process before the actual trial in court. Therefore, "sliding scale" contingent fees (i.e., 25% before the suit is filed, 331/3/% after the suit is filed, 40% if the case goes to trial, 50% if the case goes on appeal, etc.) are not in vogue. Most States now have statutes limiting contingent fees in medical malpractice cases. And of course, the plaintiff's attorney will withdraw should they find the case unmeritorious after additional investigation.

The contingency agreement may provide, if permissible in your jurisdiction, that the attorney shall have the right to advance costs on behalf of the client (and the right to be reimbursed). Ordinarily, the victim of medical malpractice has been plunged into a financial abyss, and is unable to undertake the cost of the investigation and prosecution of the case. These advances usually do not include any sums for medical care and treatment, however, and are limited to the necessary expenses for medical reviews and examinations, and costs of investigation, depositions and the like.

The handling of a medical malpractice case is unique in the practice of law. Although there is some kinship to cases involving legal malpractice, architectural malpractice, accountancy malpractice and even product liability (sometimes called "manufacturer's malpractice"), in medical malpractice, often there is a vast array of players in the act. The talents of these players can vary considerably. In what appears at first to be surgical malpractice, one may find that the surgeon was in fact brilliant, and it was the anesthesiologist who was incompetent. In the next case there may be an incompetent surgeon and a brilliant anesthesiologist. Nurses, of course, also vary in ability, from a scale of "minus one" to "plus ten."

An important step in screening a medical malpractice case is to check the credentials of the health care providers who might become defendants in the lawsuit. More that fifty- percent of the medical practitioners in the United States are board certified. This means that they have taken approved postgraduate training and have passed an examination required by the particular specialty board. When a physician holds himself or herself out as a specialist, in most cases it is safe to assume that he or she is board certified and has acquired the training and skills ordinarily possessed by physicians in good standing in the community who practice the same specialty. But when a nonboard certified physician holds himself or herself out as a specialist in a particular field, there is a strong inference that that physician does not possess the training and skills that should be possessed for that field, and if that physician is involved in an "untoward event," lack of training and skill just may be the cause.

Some hospitals grant staff memberships to board certified specialists only, and usually such hospitals have a good reputation in the community and within the medical profession. Hospitals with "willy nilly" policies on granting staff memberships ordinarily do not have a good reputation, and if there is an untoward event, it might be explained by this laxity in credentialing. In determining who should be made a defendant, it should be borne in mind that any physician or other party, including hospital personnel, who has contributed to the client's injury should be joined as a party to the lawsuit. At the same time, care should be exercised to not unnecessarily join an individual if he is innocent of wrongdoing, and if he has not participated in a conspiracy to protect the actual wrongdoer. Collateral, remote, and innocent persons should not be subjected to a lawsuit. In cases in which there has been a serious drug reaction, as we find with the fluoroquinolones, it is often necessary to join the drug manufacturer as a party defendant. In numerous cases, a physician will claim that a patient had an idiosyncratic reaction to the drug, but it may be that the physician prescribed an incorrect drug, or violated the manufacturer's recommendations regarding usage or dosage of the drug. Also, the manufacturer may have failed to warn of certain hazards of the drug, (as found within the fluoroquinolone class) or misrepresented its effectiveness.

After procurement of as many medical reports as possible, and photostatic copies of physicians' office records and the patient's hospital charts, a medical malpractice attorney will have a competent physician review the material to ascertain whether there has actually been negligence or a violation of applicable standards of medical or hospital practice, and whether there is a causal relationship between such negligence and the client's injury. If this fact cannot be established and supported by the record the lawsuit will go no further. It will end right there. Obviously, the question arises as to how one finds a good medical reviewer. This, of course, is not always an easy task. An attorney will, in most cases, be required to employ a medical expert at an outrageous expense.

The field of "Medical Experts" is ripe with fraud and physicians who are willing to provide "Expert Testimony" whether for the plaintiff or the defendant in whatever form the case may require, if the price is right. If an attorney is presented with a potential major medical malpractice case, and he is unable to procure a medical reviewer, the case may very well be dismissed. It is very risky for any attorney to proceed to trial with significant malpractice litigation without available competent medical consultation on a continual basis. This does not mean that it cannot be done, however. Some plaintiff's lawyers have been able to prosecute successfully a malpractice case, even through trial and appeal, primarily on the strength of their own medical research. And, of course, many have achieved very attractive settlements without the help of medical consultation. But this was in the past, prior to the recent "Tort Reform" and these cases were the exceptions rather than the rule.

Today the testimony of an expert witness is one such requirement of the recent "Tort Reform" that prevents many plaintiffs from pursuing their claim. Even where help is promised by a medical adviser, the malpractice plaintiff's attorney, in many cases, will find that he must conduct much medical research on his own. Thus, where full professional assistance is not available, or where circumstances are such that he or his client cannot undertake the necessary cost of a thorough evaluation by an expert, the plaintiff's attorney must be prepared to rely on what he can find in the medical and medicolegal literature. However if the case goes to trial, success almost always depends upon the testimony of an expert witness. An expert witness must establish a standard for medical care and give an opinion on whether the defendant's conduct met this standard. The standard must at once be general to all practitioners and specific to the individual plaintiff's circumstances. Ideally, it should be supported by uncontroverted scholarly literature. While it need not prescribe a single course of action, it must either (for the plaintiff) proscribe the defendant's conduct or (for the defense) endorse the defendant's conduct as an acceptable alternative.

These standards ignore the conflict between actual medical practice and legal expectations. The courts expect that medicine, as a learned, science-based discipline, will have articulated standards for practice. While recognizing the art in medicine, the law assumes that the science of medicine will be sufficiently formalized that the regions of art will be readily identifiable. Rather than face the core problem of inadequately defined practice standards, the courts allow experts to step into this void with standards tailored to serve the desired ends of the lawyer engaging the expert. Obtaining expert testimony has always been the most difficult part of medical malpractice litigation.

Historically, there have been two competing interests: members of a professional group did not want to testify against their colleagues, but they did want to run their competitors out of business. Allopathic physicians were happy to label homeopathic physicians as incompetent, and any physician would dispute the competence of a chiropractor. These rivalries led the courts to use the legal doctrines of the school of practice and the locality rule as the basis for qualifying a person as an expert witness. But the problem still remains, that being the reluctance of a local physician to testify against another for fear that he or she will also be testified against in the future. Additionally medical societies have taken to ostracizing any physician who testifies against another. The school of practice distinctions also predated modern medical training and certification.

At one time medical practitioners were divided into chiropractors, homeopaths, allopaths, osteopaths, and several other schools based on different philosophical and psychological beliefs. Since state legislatures did not discriminate among these different schools of healing, judges were reluctant to allow litigation to be used to attack an approved school. Except for chiropractors, allopathic practices (and osteopaths using primarily allopathic methods) have driven out the other schools of medical practice. The courts retain the traditional school of practice rule when they refuse to allow physician experts to question chiropractic care or chiropractors to testify in cases with physician defendants. The school of practice rule is now applied to the differentiation of physicians into self-designated specialties (self-designated because few state licensing boards recognize specialties or limit physicians' right to practice the specialties in which they have been trained).

The relevance of the specialty qualifications of an expert witness depend on whether the case concerns procedures and expertise that are intrinsic to the specialty or general medical knowledge and techniques that are common to all physicians. This dichotomy is reflected in strategies for expert testimony. Whether the parties to the lawsuit will stress the specialty or general knowledge depends on the qualifications of the expert that each has retained. The locality rule is the progenitor of the debates over the proper specialty qualifications for an expert witness. The locality rule evolved before the standardization of medical training and certification. During this period, there was a tremendous gulf between the skills and abilities of university-trained physicians and the graduates of the unregulated diploma mills. In many parts of the country, parochialism and necessity combined to create the rule that a physician's competence would be determined by comparison with the other physicians in the community, or at least in similar neighboring communities.

The strictest form of the locality rule required the expert to be from the same or a similar community. The underpinnings of the locality rule are diametrically opposed to contemporary specialty training and certification. There is no longer a justification for a rule that shelters substandard medical decision making on the sole excuse that it is the norm for a given community. Unfortunately, the locality rule is being reinvigorated in some states as a tort reform measure. This made it nearly impossible for injured patients to find experts to support their cases, effectively preventing most medical malpractice litigation.

As one can clearly see by the above description as to what is involved in even starting a medical malpractice lawsuit frivolous lawsuits are not a major contributor to rising malpractice insurance costs nor does frivolous litigation clog the court system.

The problem with medical malpractice is that it occurs far too often. It is the eighth leading cause of death in America, killing more people than AIDS, breast cancer, or automobile crashes. Is this the patients' fault? Certainly not. The Institute of Medicine's 1999 report, To Err Is Human: Building a Safer Health System, reported that up to 98,000 patients die—and many more are injured—in U.S. hospitals each year as a result of preventable medical errors. That's 268 deaths every day from errors like surgeons operating on the wrong side of the brain and nurses administering lethal doses of medication.

Most injured patients and the survivors of those who die never learn that they or their loved ones were victims of medical malpractice. Peer review and a conspiracy of silence protect many negligent doctors. There is no reason to think the statistics have improved since 1990, when the Harvard Medical Practice Study Group published its report, Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York. The study found that only one in eight instances of malpractice resulted in a claim. And of suits that are filed and tried, the latest study by the Justice Department's Bureau of Justice Statistics says plaintiffs win only 26 percent. All of us want to trust our doctors.

But the fact of the matter is that some cannot and should not be trusted. An investigation by the West Virginia Sunday Gazette-Mail revealed that just 40 doctors were responsible for more than one-fourth of the 2,300 cases of medical malpractice reported to the state's Board of Medicine between 1993 and 2001. And a recent analysis of medical negligence records in Kentucky found that from 1992 to 2001, only 16 percent of the state's doctors were responsible for 100 percent of the medical malpractice there. In the face of such compelling evidence that bad-apple doctors commit a large percentage of medical malpractice, one might assume that the profession and its insurers would weed out the repeat offenders.

Not so. According to one recent study, fewer than 30 percent of doctors disciplined for “substandard care, incompetence, or negligence” or for mis-prescribing or over prescribing drugs had to stop practicing—even temporarily. And unlike auto insurers, most medical malpractice insurers don't base premium rates on the doctor's experience. In other words, good doctors—and far too many innocent patients who are injured or killed—pay for bad doctors.

So why has a “medical malpractice crisis” arisen now? There were similar “crises” in 1976 and 1986, when, as now, the economy had recently declined. The insurance companies, which derive most of their profits from investments, suffered from bad business decisions. Then, as now, they covered their losses by raising insurance premiums dramatically, then blamed innocent patients who sought compensation for negligence-related injuries—and, of course, their lawyers.

When St. Paul Insurance Co., one of the major medical malpractice insurers, announced earlier this year that it was getting out of the business, it claimed growing malpractice verdicts were the problem. The company conveniently failed to mention that its economic hardship was really caused by poor investments —including the $108 million it lost when Enron collapsed. Nor has the medical or insurance industry mentioned that, according to the federal Health Care Financing Administration (now the Centers for Medicare and Medicaid Services), health care costs increased almost 75 percent from 1988 to 1999 - far more than the rate of inflation - while medical malpractice premiums increased by less than 6 percent.

Of course, verdicts based on actual losses have increased over the past decade. But according to the 2000 edition of the Statistical Abstract of the United States, doctors in 1997 paid 25 percent less of their average annual incomes for malpractice insurance than they did in 1985. And what about claims that doctors are quitting the profession or moving out of their home states? A Philadelphia Inquirer investigation found no such trend, and the same is true in West Virginia.

Now we are hearing that doctors are fleeing Nevada and other states, but this is not the first time doctors—at their insurers' prompting—have cried wolf. Doctors and insurers say that limiting malpractice awards would hold down insurance costs. But the truth is that insurance premiums are slightly higher in states that cap damages. The American Medical Association itself reports that doctors in California, the state with perhaps the most restrictive limit on damages in the country, pay 20 percent more for malpractice coverage than the national average.

The negligence of bad doctors and the bad business decisions of insurance companies are not the fault of patients who are mistreated. Yet it is patients who will be punished—more than they already have been—if doctors and insurers succeed in convincing the public that limiting justice is the solution to their troubles. While multi-million-dollar jury awards are fodder for the malpractice crisis media campaign, the truth is that when claims go to trial, plaintiffs were unlikely to prevail.