News related to tort reform is usually on one of two main topics: states passing tort reform laws or courts overturning those laws. Unfortunately, in many ways due to manipulative efforts by those selling these proposals, there are far fewer developments involving legislative action to get rid of harmful tort reform laws. That is why each Illinois medical malpractice lawyer at our firm was interested to read about proposals out of Connecticut to inject a bit more fairness into that state’s justice system as it relates to medical malpractice.
The News Times reported this weekend that the state’s lawmakers are considering a proposal to get rid of unfair requirements which force those filing medical malpractice lawsuits to get opinions from certain healthcare providers beforehand that meet very specific criteria. As we’ve previously reported, the law does not allow one of these suits to be filed unless a medical opinion verifying the allegations made are filed ahead of time.
All medical malpractice lawyers would likely attest to the fact that there are several big problems with this bill that leads to meritorious claims being dismissed well before the merits of the case are even heard by a fact finder. For one thing, it is very difficult to obtain all of the records and information pertaining to a particularly case before that case is underway. Much documentation and evidence is uncovered in the “discovery” phase of a trial. Adding stringent requirement before discovery is even completed is a dangerous precedent.
In addition, these exact measures have been declared unconstitutional in many other states, because they place often daunting barriers in front of patients with fewer resources. Obtaining the required medical opinion is not free. It is often quite expensive. Forcing plaintiffs to obtain this costly opinion before even having access to the justice system is an unfair hurdle that essentially means that those without certain financial means do not have the same legal rights as those who can afford more. As one state Senator who supports the bill commented during the hearing on it, “to stop anyone from having their day in court is not justice.”
Our Illinois medical malpractice attorneys know that this requirement-like all extra burdens on plaintiffs in these cases-is essentially just another loophole that defense attorneys can use to stall and throw out meritorious claims. This bill requires the medical opinion to be submitted by an attorney with “similar” background and experience as the doctor involved in the suit. That “similar” requirement has been interpreted by various courts as requiring nearly “identical” background and experience. That is very difficult and sometimes impossible to find. Therefore, defendants (even those who made the most egregious errors) are able to challenge the opinion, get it thrown out of court, and avoid being held accountable for their misconduct.
These sorts of barriers are unfair, unnecessary, and detrimental to patient safety. It should not be a controversial principle that medical providers be held accountable when they act unreasonably and hurt unsuspecting patients. Research has consistently found that lack of accountability breads more medical errors. Open and fair access to the civil justice system should not be feared.
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