Arm-Twisting Revives Delaware Medical Malpractice Affidavit Bill

April 17, 2006

A bill raising the legal hurdle for medical malpractice plaintiffs was clinically dead after a House committee vote last Wednesday, but was quickly revived with some arm-twisting by the House majority leader.

After a hearing pitting representatives of the medical community against trial lawyers, the House Economic Development, Banking & Insurance Committee voted 5-5 on a motion to release the bill to the full House.

Committee chairwoman Donna Stone, R-Dover, declared the meeting adjourned, and people began to file out of the room.

House Majority Leader Wayne Smith, sponsor of the bill, then burst through the doors with Rep. Pam Thornburg, R-Dover, in tow.

Stone shrugged her shoulders and told Smith the meeting was adjourned, but she offered no resistance when Smith told her to let Thornburg sign the bill and allow its release.

Rep. Tina Fallon, R-Seaford, 88 years old and somewhat slower than Smith and Thornburg, arrived a minute later to add her signature, completing the bill’s recovery.

Rep. Joseph Viola, who voted against releasing the bill, didn’t know its real fate until told by a reporter about the post-meeting changes.

“It’s not the way the process works,” said Viola, D-Newark. “The was five to five; the meeting was adjourned.”

Smith, R-Wilmington, said House rules allow members to vote on a bill after a committee meeting.

The bill would amend a state law requiring any person claiming to be the victim of medical negligence to submit an “affidavit of merit” from a qualified medical expert stating that there are reasonable grounds to believe a defendant has been negligent.

Trial lawyers say they agreed to the affidavit requirement in a “good faith” effort to demonstrate that there is no problem with frivolous lawsuits against doctors.

“Of all the professions that practice in this state, the doctors are the only ones who have this privilege,” Bruce Hudson, past president of the Delaware Trial Lawyers Association, told committee members.

Trial lawyers are fighting an effort by doctors to remove a provision in the law that requires the names of physicians who submit the affidavits to be kept confidential by the court and not disclosed to defense attorneys.

Dr. Joseph Hacker III, past president of the Medical Society of Delaware and current chair of its legislative committee, said the provision prevents defense attorneys from being able to challenge the credentials of an affidavit signer.

“That expert gets to render that opinion in complete anonymity,” he said. “… We want to level the playing field.”

Dr. Leonard Nitowski, an emergency room physician at Christiana Hospital, recounted a recent case in which a doctor who submitted an affidavit of merit made false claims about his board certification, a fact that came out only after the case had gone to trial.

Opponents of the bill note that affidavit signers in cases accepted for trial typically testify on behalf of plaintiffs and are subject to being deposed and cross-examined by defense attorneys. They also point out that the law already authorizes judges to review affidavits of merit and the curriculum vitae of the submitting experts, and to reject them if they are lacking.

In 2004, for example, a judge rejected affidavits of merit in a New Castle County lawsuit, ruling that the documents were too equivocal, even though they could also be read as meeting the statutory requirements.

More recently, however, questions about the qualifications of the affidavit signer in the case cited by Nitowski did not surface until he was cross-examined during the trial, a fact described by the judge in a scathing letter to the plaintiff’s attorneys as “a most unfortunate and somewhat unprecedented situation.”

Richard DiLiberto, president of the trial lawyers association, said the anonymity provision should not be changed because of a single incident involving a doctor fudging on his qualifications.

“It’s very difficult to have people come forward and be truthful about substandard medical care by a colleague if they are going to have to pass that colleague in the hallway of the hospital,” he said.

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