Constitutionality of med mal reform questioned

A state supreme court has agreed to hear a case that would challenge the constitutionality of the state’s medical malpractice litigation reform. The statute requires that, when a medical malpractice suit is filed, the plaintiff must also file a certificate stating that a physician has reviewed the case and believes that it has merit. Without the certification, the court will dismiss the claim.

In this medical malpractice suit, the plaintiff, who is himself a physician, is suing his urologist for a botched procedure that left the plaintiff with Peyronie’s Disease. When the plaintiff sued his urologist, he did not file the appropriate certificate because he could not get a doctor to review the case. Of the 12 urologists that the plaintiff consulted, 10 of them refused to even look at the case, and the remaining two would only do so in exchange for $40,000.

The plaintiff will argue at the state supreme court that the certification requirement is unconstitutional because it denies access to the courts. Most plaintiffs would not have $40,000 to pay for a physician’s certification of their medical malpractice claim, and most attorneys would not agree to take clients on a contingency fee basis. The situation is exacerbated when the defendant physician has a specialty, as the number of potential certifying doctors would be even smaller.

Several other states, including Illinois, have similar requirements for certification of medical malpractice claims filed within the state.

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