Friday, July 20, 2012

Debate on Michigan bill that would radically change the concept of duty in med mal cases

Hundreds of protestors turned out in Michigan’s capitol city of Lansing this week to speak out against a proposed bill that would radically alter the element of duty in medical malpractice lawsuits which would allow doctors to avoid liability in most, if not all cases. Senate Bill 1116 states that a doctor could not be held liable in Michigan if he or she "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.”  Read literally, this would allow a doctor to escape liability if he or she is convincing when claiming they acted in good faith.  This is the old "I did the best I could" approach to duty which, as every lawyer knows from the first week of class in their Torts course, was abandoned as unfair and unworkable.  For more information go here.

I commented on this bill back in May (here).  In part, I said:

"[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.

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