Medicolegal Sidebar: Blowback: The Unintended Consequences of Medical Liability Reform

Abstract

The Medicolegal Sidebar column addresses issues that orthopaedic surgeons may face at the intersection of law and medicine. One of the goals of the column is to assist orthopaedic surgeons in making legally sound clinical and business decisions. In doing so, the column focuses on legal issues, avoiding the public debate on whether our current malpractice system favors providers or patients. Accordingly, our column will periodically publish articles by distinguished guest commentators to express their personal opinions on the current status of our malpractice system. The goal of these commentaries is to stimulate discussion among our readers and others who have an interest in malpractice litigation. Our first distinguished commentator is attorney Christopher Stombaugh. Mr. Stombaugh is an accomplished trial attorney, a faculty member of The Gerry Spence Trial Lawyers College and Past President of The Wisconsin Association of Justice. —B. Sonny Bal MD, JD, MBA, Lawrence H. Brenner JD While physicians and trial lawyers in the medical liability system may speak the same language, they really misunderstand each other. Physicians and lawyers, like the United States and Great Britain, are ‘‘[t]wo nations divided by a common language’’ [5]. A clear example of this disconnect is when we discuss medical negligence claims and medical liability reform. The common impression among many physicians is that a claim for medical negligence is, in essence, a claim that a physician is a ‘‘bad doctor.’’ Worse yet, verdicts against physicians can result in those physicians being reported to the national databank, and even unsuccessful claims have to be reported to future hospitals when one seeks employment. Litigation, therefore, can adversely affect a physician’s reputation and livelihood. Trial lawyers in the medical liability system, however, would submit that the issue should not be the fear of litigation, rather the fear of carelessly injuring patients. The latest statistics (August 2015) from the New York Law School’s Center for Justice and Democracy reveals that medical negligence cases made up Note from the Editor-in-Chief: We are pleased to publish the next installment of ‘‘Medicolegal Sidebar’’ in Clinical Orthopaedics and Related Research. The goal of this quarterly column is to encourage thoughtful debate about how the law and medicine interact, and how this interaction affects the practice of orthopaedic surgery. We welcome reader feedback on all of our columns and articles; please send your comments to eic@clinorthop.org. The author certifies that he, or any member of his immediate family, has no funding or commercial associations (eg, consultancies, stock ownership, equity interest, patent/ licensing arrangements, etc) that might pose a conflict of interest in connection with the submitted article. All ICMJE Conflict of Interest Forms for authors and Clinical Orthopaedics and Related Research editors and board members are on file with the publication and can be viewed on request. The opinions expressed are those of the writers and do not reflect the opinion or policy of CORR or The Association of Bone and Joint Surgeons. C. D. Stombaugh JD (&) Stombaugh, Smith & Co., 600 Washington Ave., Towson, MD 21204, USA e-mail: chris@stombaughsmith.com Medicolegal Sidebar Published online: 28 October 2015 The Association of Bone and Joint Surgeons1 2015