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MDs in the Courtroom: Change and Constancy

by Tom A. Augello, CRICO | December 9, 2016

Is the legal environment for medical malpractice ripe for change?

In Washington, DC, tort reform is a favorite cost-control idea of the party taking over in 2017. At the state level, Massachusetts is nearing the two-year anniversary of a new law that gives attorneys a chance to interview potential jurors in civil cases. We’ve now had enough time to see how lawyers are using this new ability, if not enough data to know that it changes trial results. But Boston defense attorney Ellen Cohen tells CRICO that she wouldn’t be surprised if it did: giving lawyers a chance to talk directly to potential jurors before selecting or rejecting them should result in a more unbiased jury at trial.

Still, some things never change when it comes to the courtroom and patients suing doctors.

Retired Massachusetts Superior Court Justice Hiller Zobel and Stephen Rous, MD just wrote a book describing the experience for physician defendants. The second edition of a book they published in the 1990s, “Doctors & the Law” guides physicians through the legal system. As the online synopsis says,

“  Even a doctor merely testifying as an ordinary witness or expert, can undergo acute feelings of uncertainty as to role and performance. This book is designed to educate, soothe, and encourage anyone entering the stormy seas of litigation. ” 

The November issue of “CRICO Insights” features these developments and more about the court system that comes into play after a patient or family member sues their medical provider. The edition also has tips on 10 focus areas for patient safety from AHRQ, and includes a case study where miscommunication in the operating room led to a retained foreign body and a court settlement.

Medical providers are never likely to be comfortable in the courtroom. But learning more about how it works, how it affects themselves and colleagues, and what may change over time, may help.

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