Utah Med Law

Senate Bill #0079 passed the Senate second reading yesterday and heralds a closing of the doors of justice to you, your family and loved ones if they are injured as a result of negligence in the emergency rooms of Utah.  This bill, if it passes and becomes law will close the doors to the court house in three ways.

First, the bill calls for a "clear and convincing" criteria for evidence to establish that you were malpracticed upon.  We already have a clear and convincing criteria in other area of the law.  For example, a clear and convincing degree of evidence is needed to establish that you were hit in your car by a vehicle that leaves the scene - a phantom vehicle.  In this car crash case you need other independent irrefutably evidence that another car was involved or caused the crash.  That is often impossible to do if there are no other independent witnesses at the scene of the crash.  When you are in an emergency room there are seldom independent bystander witnesses available that are trained enough to offer evidence that a doctor or health institution committed malpractice.  In the end it will be virtually impossible to prove whether you were negligently treated or not.

Second, the bill calls for subjecting expert witnesses to the oversight of the Osteopathic Physicians Licensing Board made up of four osteopathic physicians and surgeons and one member of the general public.  This board effectively determines whether a medical expert has committed unlawful or unprofessional conduct when acting as an expert in Utah.  You have to understand that it is virtually impossible to find another physician in Utah that will criticize any other physician in Utah.  The doctors close ranks and help each other to ward off genuine claims of medical malpractice.  Attorneys are forced to retain the services of expert physicians from out-of-state and under this new law subject themselves to the board.  These out-of-state experts are not interested in opening themselves to review by a board that is stocked with local physicians bent on protecting the very members they regulate.

Third, the bill will use as a basis to establish the standard of care that medicine that is based on the current standards of care for Utah.  This is a gigantic problem because medicine is a national standard established and taught in medical schools across the nation.  Ascribing to the Utah standard has the clear ability to undermine the national level of care and render care received by patients to deteriorate.

So why do we need this new Senate Bill euphemistically called  "Health Reform - Medical Malpractice Amendments" but more properly named the "Health Deform Bill?"  Why not let jurors, your peers and neighbors, determine whether you or a loved one has sustained injury as a result of negligent health care?  I am sorry but I do not know the answer.  Your day in court on a fair and level playing field is jeopardized by this bill.  The current system works - why tamper with it?  I suspect the entities that wield the power that influence state legislators.  Physician groups, their insurance companies and the hospitals are these entities.  It is in their financial interest to prevent successful malpractice cases.  Unfortunately this financial interest rides on the back of people that are genuinely injured as a result of negligent care and with the passege of this bill are prevented from having their day in court.

There is a growing sentiment in the general public that law suits against doctors and hospitals are driving up health costs but the facts say otherwise.  Negligent health care litigation accounts for less than one percent of overall health care costs and has been static for a number of years.

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