Malpractice: An Effective Ray of Hope for Doctors

Anthony Francis, MD, JD

Disclosures

May 03, 2012

In This Article

One Step Back

In early 2012, the Arkansas Supreme Court struck down a measure that would have made it more difficult to qualify as an expert.

In 2003 the Arkansas legislature enacted a tort reform law that included a provision that expert witnesses in medical malpractice suits must practice in the same specialty as defendant doctors. Although this seems logical, the Arkansas Supreme Court found differently.

On January 19, 2012, that court ruled that the requirement "violates the separation-of-powers doctrine." The court found that there is an inherent authority of the lower courts to protect the integrity of proceedings and the rights of the litigants. The 2003 law provision was struck down as being unconstitutional.

The recent ruling was the result of a lawsuit filed by Teresa Broussard, who in 2006 underwent a parathyroidectomy performed by general surgeon Stephen Seffense, MD. After the surgery, Broussard noticed a burn near the incision. She was prescribed pain medication and steroids and was discharged.

A few days later she presented to the ER complaining of pain from the burn but was admitted for hypocalcemia and hyperkalemia, conditions related to renal failure. Nephrologist Michael Coleman Jr., MD, consulted with a dermatologist about the burn. Broussard was told she had a second-degree chemical burn but that it should improve within 2 weeks with the damaged skin peeling off. The burn did not improve and in fact worsened, with the appearance of black, necrotic, skin. Eventually Broussard required skin graft surgery.

In 2007 Broussard sued Dr. Seffense, Dr. Coleman, the hospital, and the nurses and technicians present in the operating room. Broussard did not obtain an expert in the specialties of Dr. Seffense and Dr. Coleman as required by Arkansas law. Rather, she hired an expert who offered an opinion on burns.

The physicians filed a request for summary judgment based on this failure, which the trial court granted. Broussard appealed, claiming that the requirement was unconstitutional, and she lost. She then further appealed to the Arkansas Supreme Court which reversed the dismissal, struck down the law, and found in her favor.

Conclusion

One of the most successful ways to control and diminish medical malpractice suits involves limitation of experts who can testify. This phenomenon, which occurs by legislative action, has remained largely unreported, but it is a method that is gaining in popularity in some state legislatures. There is a risk that state supreme courts may overturn these efforts, but continued efforts in this direction hopefully will prevail and lead to fewer medical malpractice suits.

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