Should not a legal system based on the principle of trial by a jury of your peers also apply in concept to medical professionals testifying against other medical professionals in malpractice cases?

This is one of the overarching questions at the heart of S1036, a medical malpractice reform package currently working its way through the Arizona Legislature. Strange as it may seem, physicians called as expert witnesses against other physicians do not currently have to come from the same field of expertise or even be aware of the latest research and treatments at the center of the lawsuit.

S1036 would correct this inequity by requiring expert witnesses in medical malpractice cases to be licensed health-care professionals in the same practice area as the physician on trial, and they must have practiced or taught in that field a year prior to the occurrence that gave rise to the lawsuit.

No Arizonan is untouched by this issue. Among many other effects, hyper-inflated jury awards drive doctors away from high-risk practices, causing a shortage of quality medical care in many areas.

“We have a reputation as a very physician-unfriendly state in terms of medical malpractice,” said David Landrith, vice president of the Arizona Medical Association. “The No. 1 driver of increasing medical malpractice premiums is the severity of awards.”

S1036 would also make it easier for a doctor’s counsel to question a plaintiff’s physician without restriction, but also without violating any of the doctor-patient privacy provisions in the federal Health Insurance Portability and Accountability Act, more commonly known as HIPAA.

A third reform would promote open communication between the physician and his or her patient for the purpose of expressing compassion and understanding without having every little utterance admissible in court. In other words, a doctor would be allowed to express his sorrow and even apologize without being hung by the rope of his sympathy.

Nine states have recently adopted this new open communications law in medical malpractice cases, and when the Department of Veterans Affairs Medical Center in Lexington, Ky., enacted a policy of assuming responsibility for medical mistakes by allowing doctors to talk about them with their patients, medical malpractice costs dropped to an all-time low. The average settlement at that Center was $15,000, compared to the average $98,000 settlements at 36 similar VA medical centers.

Complementary to S1036 is an effort by medical and business associations to ask voters next year to lift a state constitutional amendment against caps on jury awards for non-economic damages. Unlike straightforward damage awards, which are compensation for measurable financial losses, non-economic damage awards have no precise cash value. It is very difficult for juries to assign a dollar amount to these losses, so trial lawyers are more than willing to help out by suggesting enormous amounts, thereby, it logically follows, earn a little more for themselves.

Neither a proposed ballot initiative nor S1036 would do anything to stop society from removing a grossly incompetent physician from practicing in Arizona. Nor does either measure stand in the way of justly awarding a victim of a horrendously botched job. But these are highly infrequent and isolated cases. What S1036 seeks to do is keep good physicians at a safe distance from needless and frivolous lawsuits so that they may continue to treat us with care.—

Michelle Bolton is Arizona state director for the National Federation of Independent Business. The group has more than 10,000 members in Arizona. Its Web site is www.NFIB.com/AZ