Friday, February 9, 2007
Utah is considering upping the standard of proof for plaintiffs in malpractice claims against emergency medical providers to clear and convincing evidence. A perspective from a plaintiffs' lawyer:
Under HB 338, the standard would be changed to a "clear and convincing standard" which, according to Charles Thronson, senior partner and medical malpractice litigator at Parsons Behle and Latimer, is a quasi criminal standard. He said this standard is just below the "reasonable doubt" standard, and it would make it virtually impossible for the victims of malpractice to win a lawsuit.
"This bill is a de facto grant of immunity to everyone who works in an emergency department in every emergency department in the state ... for whatever mistakes or misconduct that may occur," Thronson said.
I don't know the impact of increasing the burden of proof in similar circumstances, but it's not remotely accurate to say that it makes it "virtually impossible" to win a lawsuit. A remarkable percentage of patent invalidity claims (also using clear and convincing evidence) are successful, and plaintiffs frequently satisfy the burden for punitive damage claims in states that require that standard. Certainly it is a higher standard, and one can easily identify reasons to oppose it, but to suggest that it's blanket immunity is silly.
This, on the other hand, is an interesting argument:
lark Newhall, a board certified ER physician and a lawyer practicing in the area of medical malpractice, said this bill will vastly increase the costs of medical care because patients will be sent to more costly ERs for what would normally be done in a doctor's office.
"Which doctor is going to be foolish enough to see a patient in their office, particularly a new patient, when they can send that patient to the emergency department and see that patient in the emergency department and be immunized from malpractice," Newhall said.
Anyone know of any data on it?