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By Paul McGinn BL
LEGAL LESSONS
European ophthalmologists may soon confront international standard of care in court
According to a leading American lawyer who defends ophthalmologists against malpractice lawsuits, European ophthalmologists and virtually all other specialists may increasingly find themselves judged by international experts. Such experts may make it more difficult for physicians – including ophthalmologists – to defend themselves against a malpractice lawsuit, warned John V Smith II, who practices in the Chicago-based law firm of Pretzel & Stouffer.
The trend toward international experts represents a shift from the traditional defence of physicians in medical malpractice cases. According to that tradition, physicians could successfully defend a medical malpractice case – even if they made a mistake – if they could find a colleague to testify that they practiced in accordance with a local standard of care. In such circumstances, the local colleague was deemed to be an "expert" for the purposes of the evidence about the standard of care. Now, however, that is changing, says Mr. Smith.
"The standard of care used to be determined by what was practised locally. Soon it will be what is practised internationally," Mr. Smith told a meeting of medical malpractice lawyers here recently.
Mr. Smith said that lawyers suing physicians aren't the only ones choosing international experts. He – like other defence lawyers – is increasingly relying on international medical experts too, to contradict the often highly specialised claims made by patients' experts. "Medicine is becoming so much more specialised all of the time," he said. He noted that in defending his own physician-clients in the United States against malpractice lawsuits, he has recently sought the expert assistance of physicians from Sweden and Italy .
Mr. Smith also predicted that the defending of ophthalmologists will increasingly depend on international experts because of the "phenomenal advancements" made over the last few years in cataract and refractive surgery. In parallel with the move toward a international standard of care, many judges in the United States are taking a greater role in determining whether an "expert" is really an expert at all and should be allowed to testify against a physician in court. Mr. Smith noted that the United States Supreme Court – in a judgment that may eventually have some effect on courts in Europe – ruled that a judge has the power to prohibit the testimony of any so-called "expert" who cannot demonstrate his or her competence in judging a physician's standard of care.
Back to top... In particular, the Supreme Court ruled that a judge in a malpractice case must assess every expert – including any medical experts – who will be called as witnesses in a case to ensure that the reasoning and methodology for the expert's testimony is "scientifically valid." If the reasoning and methodology aren't good enough, then the expert shouldn't be allowed to testify, the court said. Mr. Smith added that getting the right expert can make or break a malpractice case. "Experts make the difference in medical malpractice cases," he said. "Lawyers may get the credit, but the experts are really the ones who deserve the credit."
To some extent, the trend toward international experts is already occurring in Europe . In smaller countries like Ireland , senior physicians have traditionally declined to serve as experts for patients who sue their colleagues. Although such reluctance has diminished somewhat in recent years, many patients still must hire an expert medical witness from outside their own country to sue their physician. As a result, physicians in smaller countries – including ophthalmologists – find themselves facing experts who judge them not by the standard of their own country but by a foreign or international standard of care. And sometimes, that standard can be higher than the local or national standard or care.
John V. Smith II
Pretzel & Stouffer
Chicago , Illinois , USA
+312-346-1973
jsmith@pretzel-stouffer.com
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French legal concept may return to Europe with dire consequences
A French legal concept imported – and exploited – by American lawyers could return to Europe with dire results for ophthalmologists and other physicians.
The legal concept, known as "potential future damages," enables a patient to recover compensation when a doctor's mistake increases the risk that a patient will develop future illness, disability, or pain. The concept, which owes its origins to the French legal concept of "loss of chance," could mean even higher compensation awards against ophthalmologists and physicians. In essence, if a court adopts the principle of potential future damages, a physician – or his malpractice insurer – will have to compensate patients who may never develop illness, pain, or disability, according to John V. Smith II, a medical malpractice lawyer who regularly defends U.S. ophthalmologists.
"There is a real fear that potential future damages could expand the level of damages overall," Mr. Smith told a group of medical malpractice lawyers here recently. Historically, patients in most countries in the world could not recover any compensation – referred to as "damages" by lawyers – for future illness, pain or disability unless they could prove that they were expected to develop such illness, disability or pain. History, however, is changing, noted Mr. Smith, who practises with the Chicago-based law firm of Pretzel & Stouffer. He referred to one recent case in Chicago in which a patient received $500,000 in potential future damages after a piece of a catheter broke off during a procedure. Although experts on the patient's side and the physician's side agreed that removing the catheter was too risky, the court awarded the potential future damages because of the increased risk of infection from the catheter fragment.
In essence, the court awarded money for a potential future injury that "had not occurred and might never occur," Mr. Smith said. The prospect of such potential future damages is helping to boost malpractice awards and keep malpractice premiums high in many American states. In Chicago , for instance, malpractice awards have topped the $30 million mark. At the same time, neurosurgeons are paying up to $324,000 a year for malpractice insurance; orthopaedic surgeons are paying up to $212,000; and obstetricians are paying up to $193,000. Ophthalmologists, of course, are not immune to the effects of high malpractice awards and prospect of potential future damages. This year some ophthalmic surgeons in Chicago are paying $44,000 for coverage, higher than any European country and many times the European average premium.
Not all the news about the "loss of chance" concept is bad, however, according to an Irish lawyer who specialises in medical law. Speaking at the same meeting, barrister John Healy noted that European courts could actually use the concept of loss of chance to reduce compensation for patients. Mr. Healy explained that courts could reduce compensation for ongoing and future injuries to match the degree of the physician's negligence.
For instance, courts could reduce compensation if such factors as an existing condition – as well as the ophthalmologist's negligence – contributed to a patient's existing eye injuries. Such a development would alter existing legal rules in many countries that entitle patients to recover full compensation against an ophthalmologist or other physician if they can establish that the physician more likely than not caused the injury.
The loss of chance principle could also reduce the level of compensation for potential future injuries. Applying the principle to an ophthalmology case would allow a court to reduce compensation for a patient who faced a low risk of future illness, disability or pain because of an ophthalmologist's negligence. For instance, a patient who had a 20% risk of future blindness because of an ophthalmologist's negligence would receive only 20% of the compensation that he would normally receive if the future blindness were certain.
Loss of chance might also reduce compensation in cases where patients consented to operations that they knew were risky, Mr. Healy added. "A loss of chance assessment would also give the court greater flexibility in the informed consent claim," according to Mr Healy. For an ophthalmology malpractice case, courts could reduce the amount of compensation due to an ophthalmic surgery patient for a post-operative sight defect to reflect the risk that the patient knowingly undertook in undergoing a cataract or refractive operation. |
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