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“On the Table” Law Review Symposium Examines Medical Malpractice

Current medical malpractice litigation and causes of the healthcare crisis surveyed

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2011 Symposium Poster 

Medical malpractice raises issues of life, death, and responsibility when things go wrong. Those are dramatic topics, and malpractice’s connection to the ever-increasing cost of health care provides additional fuel for the debate.

These considerations are central to a comprehensive analysis of the related legal issues, which were the focus of the New England Law Review’s fall 2011 symposium, “On the Table: An Examination of Medical Malpractice, Litigation, and Methods of Reform.”  The symposium surveyed the landscape of current medical malpractice litigation and the causes of the healthcare crisis. It also reviewed potential medical malpractice reform methods and solutions to remedy the problems while serving patient justice.

The topic could not be more timely or important. “With the passage of the Affordable Health Care Act and the 2012 elections fast approaching, the cry for medical malpractice reform is louder than ever,” noted symposium organizers Grace Owens ’12 and Mallory Rott ’12, in their foreword to the symposium program. “Many politicians want medical malpractice reform as a means of cutting spending. Some groups, like the American Medical Association, believe changes in liability will help reduce the deficit.”
Martin C. Foster ’80, chairman of the Board of Trustees, was among the featured speakers. Foster is managing partner of Foster & Eldridge, LLP, a Cambridge firm that specializes in the defense of health care providers and the representation of health care professionals. He reviewed several on-point cases, including Matsuyama v. Birnbaum, in which the Massachusetts Supreme Judicial Court established the “loss of chance” doctrine.

Before Matsuyama, malpractice awards were decided on an all or nothing basis. Afterwards, Massachusetts became one of a few states in which juries can evaluate the impact of a doctor’s negligence on the likelihood of a patient’s recovery and make an award on a percentage basis.

Speaking about malpractice suits generally, Foster emphasized their devastating nature: “The trauma of being sued in a malpractice suit—it’s a life-changing event.” Fear of malpractice suits can lead to doctors feeling pressured to order additional diagnostic testing just to confirm an illness or disease and a plan of care; this type of clinical assessment is expensive and time-consuming. At the same time, Foster said, “This approach is in conflict with the goal of cost-cutting that is dominant in the efforts to reform the way medical care is paid for and delivered.”

Medical culture was highlighted in another context by Professor David A. Hyman, University of Illinois College of Law, and Professor Charles M. Silver, University of Texas School of Law. “Geography is destiny,” said Hyman, referring to a study that showed similar procedures costing almost double at one major medical center versus another. “What explains the difference? It’s the role of culture.”

Hyman cited the varying pace of adopting good practices and how complaints against poorly performing physicians are handled differently across the country as examples of cultural differences between medical establishments that can lead to significant differences in malpractice claim rates.

“Malpractice is a locale-driven phenomenon,” concurred Justice Douglas E. McKeon, New York Supreme Court, Bronx County, who overviewed his state’s innovative approach.

Featured speakers also included Professor Barry R. Furrow, Earle Mack School of Law, Drexel University, who addressed accountability issues; and Professor Gabriel H. Teninbaum, Suffolk University Law School, who discussed medical apology programs as tort reform measures. Professor Eleanor DeArman Kinney (retired), University of Indiana School of Law, one of the nation’s leading experts on health law, focused on the potential for captive insurers to serve as better ways for managing malpractice claims.  Adjunct Professor Dawn Effron was moderator.

“Some of the presenters were from out of state,” said Luz Carrion ’04, complaint counsel, Massachusetts Board of Registration in Medicine. “So it was very useful for me to hear their perspectives on some of these issues that I deal with in my work.”

For more information about the symposium please contact Mallory Rott '12, (617) 422-7294, business managing editor of the New England Law Review.