Tort Reform Reality: Less Access to Due Process
It is a definite eye-opener for people who believe that tort reform will not deny average citizens access to courts: a licensed physician whose lawsuit was dismissed because he didn't file a "certificate of merit" signed by a licensed physician.
The lawsuit was filed in West Virginia, where it fell under the authority of the state's 2003 law, the Medical and Professional Liability Act (MPLA), and it involved one doctor, a family physician, who went to another doctor, a urologist, for treatment of kidney stones. The lawsuit alleges that the treating doctor's errors led the doctor being treated to develop Peyronie's Disease and renal failure. So the family physician sued the urologist for medical malpractice as well as slander, fraud, and battery.
The problem is not only that the MPLA disqualifies a physician from making judgments about what constitutes a meritorious lawsuit. While one might argue that a general practitioner is not qualified to make pronouncements relevant to a specialized field of medicine, I would contend that a GPs assertion should be sufficient to at least get a lawsuit into court, where the final merit of the suit would be evaluated. Of course, a physician might be disallowed from signing his own certificate of merit, but still be allowed to file a certificate signed by another GP.
The second problem with the MPLA becomes clear when you see that the family physician went to a dozen urologists to get a certificate of merit, and only two of them were willing to sign the certificate, and they each wanted $40,000 to perform the service. This level of pre-trial payment is completely out of the reach of many people attempting to file a lawsuit. And can we assume that the doctor's difficulty was because his suit really did lack merit, and only unscrupulous doctors would sign for cash? There are many reasons why urologists might have been reluctant to sign the certificate, including professional ties to the doctor in question, but if unscrupulous doctors will sign any certificate for money, the MPLA only serves to deny access for people without money, the very people most in need when they suffer as a result of a medical malpractice injury.
Of course, the family physician's real mistake was trying to file the lawsuit without an experienced medical malpractice lawyer. It was not until his first suit was dismissed that he decided to engage a lawyer.
Don't make that mistake. If you are trying to file a medical malpractice lawsuit, you need a medical malpractice lawyer. Contact Pomerantz, Perlberger, and Lewis, LLP today for a free initial consultation.
