'Junk Lawsuits'? Tinkering with the Tort Laws

On January 16, 2003, President George W. Bush addressed Pennsylvania physicians at the University of Scranton: 'There are too many lawsuits filed against doctors and hospitals without merit. And one thing the American people must understand is even though the lawsuits are junk lawsuits, and they have no basis, they're still expensive.'

Perception or reality ' the malpractice insurance 'crisis' and judicial backlogs have prompted more than a few states to tinker with their tort laws in an effort to stop the flow of 'frivolous' malpractice actions. In the last decade, several legislatures have enacted gatekeeper statutes requiring plaintiffs to demonstrate the probability of a deviation from standard medical practice at the very outset of the litigation. These statutes typically require an affidavit or certificate of merit by an expert before a case is allowed to proceed.

Around the States

Some states require more, some less. The District of Columbia, and states such as Maine, Wyoming and Massachusetts have no certificate of merit statute enacted at this time. Nevada has no certificate of merit requirement, but does utilize a non-binding malpractice screening panel. Then there are states just dipping their toes into the process. For instance, on the lighter side, Colorado claimants must file a certificate of review within 60 days after service of the complaint stating that a competent expert was consulted. Colo. Rev. Stat. Ann. '13-20-602 (West 1997). The Minnesota statute requires an affidavit stating that a qualified expert found the defendant to have deviated from the standard of care [Minn. Stat. Ann. '145.682 (West 1989 & Supp. 1997)], where the Missouri expert's affidavit must further opine that the failure to exercise reasonable care proximately caused the injury. Mo. Ann. Stat. '538.225 (West 1988).

In Illinois, the identity of the expert originally could be withheld, as long as the expert practiced in the defendant's field of medicine and the report was attached to the complaint (or within 90 days in some circumstances). But since 1995, the identity of the expert must be disclosed. 735 Ill. Comp. Stat. Ann. '5/2-622 (West Supp. 2002). However, in New York it is still established practice not to disclose the identity of expert witnesses prior to trial. Consistent then, the certificate stating that an expert has been or could not be consulted does not require disclosure of that expert's identity. N.Y. C.P.L.R. '3012-a (McKinney 1991).

A more middle-of-the-road statute would be the type enacted in Maryland. There, an expert's liability and causation certificate is required within 90 days of choosing to file a claim for arbitration with the Health Claims Arbitration Office. Md. Code Ann., Cts. & Jud. Proc. '3-2A-04 (Supp. 1997). New Jersey [N.J. Stat. Ann. 2A 53A-27 (West Supp. 1997)] and Georgia both require an affidavit of merit. Ga. Code Ann. '9-11-9.1 (Supp. 1997).

Defendants' Affidavits

When the plaintiff must produce more specificity, defendants are often also called upon to respond with an affidavit of their own. In Florida, plaintiffs must include in their notice of intent a verified written expert opinion that reasonable grounds exist as to the alleged negligence of each named defendant. Defendants who deny that reasonable grounds for malpractice are present must also file a corroborating expert report. Fla. Stat. Ann. '766.203 (West 1997). In Michigan, a signed and sworn affidavit of merit has to set forth the applicable standard of care, breach, the actions that the physician should have undertaken to avoid that breach, and proximate cause to the alleged injury. The answering defendant must also file an affidavit of meritorious defense. MCL 2.116(C)(7); and Mich. Comp. Laws Ann. ' 600.2912d(1), ' 600.2912e (West 2000).

Although some states do not have an affidavit of merit requirement per se, the brief timeline and information that must be contained in the expert report closely equates to or even in some cases exceeds the disclosure requirements of states that do have a formal statute. In Texas, an expert report must be filed as to each defendant or the plaintiff must post a bond within 90 days of filing a notice of claim. Then, within 180 days, each defendant is entitled to an expert report detailing the allegations and the curriculum vitae of that expert. Tex. Rev. Civ. Stat. Ann. Art. 4590i, '13.01 (West Supp. 1998).

Theory of Liability

It should be noted that the theory of liability does matter. Thus, where proof of the underlying claim does not require an expert, a certificate of merit from an expert is generally not required at the inception of the case. For example, if the only theory of liability advanced in a New York matter is res ispsa loquitur, a certificate is not required.  N.Y. C.P.L.R. '3012-a (McKinney 1991). 

States without formal affidavit requirements also do not require expert opinions if such testimony is not needed to establish liability. Thus, in North Carolina complaints are dismissed unless the complaint itself states that a competent expert will testify as to a deviation from the standard of care, again, unless res ispsa loquitur is the theory of liability. N.C. Gen. Stat. '1A-1, Rules of Civ. Pro., Rule 9(j) (Supp. 1997). In North Dakota, an expert opinion must be produced within 3 months of filing the complaint, except in cases such as lack of informed consent, failure to remove a foreign object, or operating on the wrong patient or body part. N.D. Cent. Code '28-01-46 (Supp. 1997).

The legislative march toward the propagation of gatekeeper statutes has not been completely unfettered. The Ohio certificate of merit statute was held to unconstitutionally infringe on the right of that state's high court to promulgate rules of civil procedure. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E. 2d 1062 (1999). In addition, California has been touted as having the gold standard for successful insurance reform ' with capped damage awards and malpractice premiums rising slower than the national average. Much of this success has been credited to the enactment of MICRA, the Medical Injury Compensation Reform Act passed in 1975. Yet notably, CCP '411.30, which required a certificate of merit to accompany a California medical malpractice complaint, was repealed effective January 1, 1989.

Still, the trend continues toward adopting such statutes. The newly elected governor of Hawaii, the Hon. Linda Lingle, included a proposal for an independent panel to review and dismiss malpractice cases found to be without merit in her State of the State address on January 22, 2003, while revised Washington State Senate Bill 5728 actively pending in March 2003 includes a section advocating adoption of a certificate of merit requirement. Also, soon after President Bush spoke in Pennsylvania, that state became the latest to pass tort reform by re-enacting a requirement for a certificate of merit. The prior Pennsylvania statute had been approved by the General Assembly, but was overturned by that state's Supreme Court in 1996 as impermissibly infringing on the court's rule-making authorities. The Pennsylvania Supreme Court adopted the new rule in January of this year with the support of that state's Trial Lawyer's Association.

Conclusion

The statutes are not without their drawbacks, as each has spawned additional litigation to determine their meaning, exceptions, application and constitutionality.
Whether clogging law books in this manner has actually resulted in fewer frivolous court filings and lower insurance premiums remains an open question. Yet effective or not, these laws must be respected and anticipated to proliferate.

On January 16, 2003, President George W. Bush addressed Pennsylvania physicians at the University of Scranton: 'There are too many lawsuits filed against doctors and hospitals without merit. And one thing the American people must understand is even though the lawsuits are junk lawsuits, and they have no basis, they're still expensive.'

Perception or reality ' the malpractice insurance 'crisis' and judicial backlogs have prompted more than a few states to tinker with their tort laws in an effort to stop the flow of 'frivolous' malpractice actions. In the last decade, several legislatures have enacted gatekeeper statutes requiring plaintiffs to demonstrate the probability of a deviation from standard medical practice at the very outset of the litigation. These statutes typically require an affidavit or certificate of merit by an expert before a case is allowed to proceed.

Around the States

Some states require more, some less. The District of Columbia, and states such as Maine, Wyoming and Massachusetts have no certificate of merit statute enacted at this time. Nevada has no certificate of merit requirement, but does utilize a non-binding malpractice screening panel. Then there are states just dipping their toes into the process. For instance, on the lighter side, Colorado claimants must file a certificate of review within 60 days after service of the complaint stating that a competent expert was consulted. Colo. Rev. Stat. Ann. '13-20-602 (West 1997). The Minnesota statute requires an affidavit stating that a qualified expert found the defendant to have deviated from the standard of care [Minn. Stat. Ann. '145.682 (West 1989 & Supp. 1997)], where the Missouri expert's affidavit must further opine that the failure to exercise reasonable care proximately caused the injury. Mo. Ann. Stat. '538.225 (West 1988).

In Illinois, the identity of the expert originally could be withheld, as long as the expert practiced in the defendant's field of medicine and the report was attached to the complaint (or within 90 days in some circumstances). But since 1995, the identity of the expert must be disclosed. 735 Ill. Comp. Stat. Ann. '5/2-622 (West Supp. 2002). However, in New York it is still established practice not to disclose the identity of expert witnesses prior to trial. Consistent then, the certificate stating that an expert has been or could not be consulted does not require disclosure of that expert's identity. N.Y. C.P.L.R. '3012-a (McKinney 1991).

A more middle-of-the-road statute would be the type enacted in Maryland. There, an expert's liability and causation certificate is required within 90 days of choosing to file a claim for arbitration with the Health Claims Arbitration Office. Md. Code Ann., Cts. & Jud. Proc. '3-2A-04 (Supp. 1997). New Jersey [N.J. Stat. Ann. 2A 53A-27 (West Supp. 1997)] and Georgia both require an affidavit of merit. Ga. Code Ann. '9-11-9.1 (Supp. 1997).

Defendants' Affidavits

When the plaintiff must produce more specificity, defendants are often also called upon to respond with an affidavit of their own. In Florida, plaintiffs must include in their notice of intent a verified written expert opinion that reasonable grounds exist as to the alleged negligence of each named defendant. Defendants who deny that reasonable grounds for malpractice are present must also file a corroborating expert report. Fla. Stat. Ann. '766.203 (West 1997). In Michigan, a signed and sworn affidavit of merit has to set forth the applicable standard of care, breach, the actions that the physician should have undertaken to avoid that breach, and proximate cause to the alleged injury. The answering defendant must also file an affidavit of meritorious defense. MCL 2.116(C)(7); and Mich. Comp. Laws Ann. ' 600.2912d(1), ' 600.2912e (West 2000).

Although some states do not have an affidavit of merit requirement per se, the brief timeline and information that must be contained in the expert report closely equates to or even in some cases exceeds the disclosure requirements of states that do have a formal statute. In Texas, an expert report must be filed as to each defendant or the plaintiff must post a bond within 90 days of filing a notice of claim. Then, within 180 days, each defendant is entitled to an expert report detailing the allegations and the curriculum vitae of that expert. Tex. Rev. Civ. Stat. Ann. Art. 4590i, '13.01 (West Supp. 1998).

Theory of Liability

It should be noted that the theory of liability does matter. Thus, where proof of the underlying claim does not require an expert, a certificate of merit from an expert is generally not required at the inception of the case. For example, if the only theory of liability advanced in a New York matter is res ispsa loquitur, a certificate is not required.  N.Y. C.P.L.R. '3012-a (McKinney 1991). 

States without formal affidavit requirements also do not require expert opinions if such testimony is not needed to establish liability. Thus, in North Carolina complaints are dismissed unless the complaint itself states that a competent expert will testify as to a deviation from the standard of care, again, unless res ispsa loquitur is the theory of liability. N.C. Gen. Stat. '1A-1, Rules of Civ. Pro., Rule 9(j) (Supp. 1997). In North Dakota, an expert opinion must be produced within 3 months of filing the complaint, except in cases such as lack of informed consent, failure to remove a foreign object, or operating on the wrong patient or body part. N.D. Cent. Code '28-01-46 (Supp. 1997).

The legislative march toward the propagation of gatekeeper statutes has not been completely unfettered. The Ohio certificate of merit statute was held to unconstitutionally infringe on the right of that state's high court to promulgate rules of civil procedure. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E. 2d 1062 (1999). In addition, California has been touted as having the gold standard for successful insurance reform ' with capped damage awards and malpractice premiums rising slower than the national average. Much of this success has been credited to the enactment of MICRA, the Medical Injury Compensation Reform Act passed in 1975. Yet notably, CCP '411.30, which required a certificate of merit to accompany a California medical malpractice complaint, was repealed effective January 1, 1989.

Still, the trend continues toward adopting such statutes. The newly elected governor of Hawaii, the Hon. Linda Lingle, included a proposal for an independent panel to review and dismiss malpractice cases found to be without merit in her State of the State address on January 22, 2003, while revised Washington State Senate Bill 5728 actively pending in March 2003 includes a section advocating adoption of a certificate of merit requirement. Also, soon after President Bush spoke in Pennsylvania, that state became the latest to pass tort reform by re-enacting a requirement for a certificate of merit. The prior Pennsylvania statute had been approved by the General Assembly, but was overturned by that state's Supreme Court in 1996 as impermissibly infringing on the court's rule-making authorities. The Pennsylvania Supreme Court adopted the new rule in January of this year with the support of that state's Trial Lawyer's Association.

Conclusion

The statutes are not without their drawbacks, as each has spawned additional litigation to determine their meaning, exceptions, application and constitutionality.
Whether clogging law books in this manner has actually resulted in fewer frivolous court filings and lower insurance premiums remains an open question. Yet effective or not, these laws must be respected and anticipated to proliferate.