The Courts Open the Door Wide for Malpractice Plaintiffs

Medical Economics, October 19, 1998 | Go to article overview
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The Courts Open the Door Wide for Malpractice Plaintiffs


The 1960s brought revolution to many aspects of American life, and tort law was one of them. Basically, the courts removed most barriers to successfully suing a doctor.

One such barrier was the doctrine of contributory negligence. If a doctor defendant was considered 85 percent responsible for a patient's injury, but the patient was 15 percent responsible (he took his prescription improperly, perhaps), the patient's claim was thrown out. In the '60s, contributory negligence gave way to comparative negligence: The courts simply reduce the patient's award by 15 percent, and assess the doctor 85 percent.

Courts in the '60s also opened the door to expert witnesses, many of whom have become full-time testifiers. "Many, many doctors earn a substantial income today by serving as professional expert witnesses," notes James Lewis Griffith Sr., a malpractice attorney in Philadelphia. "All you need to do is look at the ads taken out by these doctors in law-related journals." In some cases, plaintiffs' lawyers recruit and pay their own "experts," and even write the testimony.

The term "expert" means only that, by training and experience, the witness knows more than lay people do.

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