Medical malpractice reform bill in Michigan would completely alter generally accepted notions of med mal law

 The Pop-Tort published a short report recently on attempts in Michigan to radically alter the law of medical malpractice.  See here, and make sure to click on the links they provide for more background information.

According to one source, Senate Bill 1116 states that a defendant would not be liable in “an action alleging medical malpractice if the person’s conduct at issue constituted the exercise of professional judgment."  As stated there is nothing new here.  That statement is a generally accepted principle.  But what it means, is distorted in the bill when it continues to say that "[a] person exercises professional judgment if the person acts with a reasonable and good-faith belief that the person’s conduct is both well founded in medicine and in the best interests of the patient.”

This statement is contrary to generally accepted principles of tort law.  It makes the standard of care subjective.  According to this proposed standard, the doctor is not negligent if the doctor can convince others that he really thought he was not being negligent.  How self serving is that?!

The proper standard is that the plaintiff has the burden to show what the standard in the profession is and that the doctor acted below that standard. If the accepted standard in the profession allows for discretion, the doctor will not be found negligent as long as the doctor exercised that discretion using reasonable care.  The fact that the result of that exercise of discretion was an injury to the plaintiff does not mean the plaintiff has a right to recover nor that the doctor was negligent.

This current standard places the burden on the plaintiff (where it should be) and it is not an easy burden to meet (the way it should be).  There is no reason to change it.

And in case you think that the drafters of the bill maybe just did not know the law, think again.  After creating this new way out for a defendant, the Bill states that "[i]f the court determines … that the [defendant] … did not meet the burden of proving that the act or omission was an exercise of professional judgment, the question of whether the person failed to provide the recognized standard of acceptable professional practice or care is a question for the trier of fact to decide."

In other words, the Bill creates a way for the defendant to excuse their conduct, but if they can't do it, then the "old" rules of law would apply.

I hope for the sake of injured patients in Michigan that this bill is defeated.