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Insurer Lobbying Makes Malpractice Cases More Challenging

  • On Behalf Of Colton Holm
  • Published: November 1, 2012

For years now, some insurance companies have been lobbying for what they call tort reform — restrictive laws designed to make it harder for injured victims to recover compensation in a civil lawsuit. The field in which they have been most successful in erecting hurdles to recovery is probably that of medical malpractice. In state after state, legislatures have enacted laws restricting the ability of patients to recover for medical professional negligence.

A recent news article explored some of these new laws. One of the most significant is a requirement many states now have that the victim file with the court an affidavit or certificate of merit, signed by a physician, stating that the conduct of the medical professionals in the case was below the accepted standard of care. The affidavit or certificate must be filed at a very early stage in the case, meaning that the victim must be able to show that malpractice occurred before he or she has even had a chance to demand information from the defendant through discovery. Montana, fortunately, is one state that has not enacted this requirement.

Montana has, however, enacted a damages cap — a law placing a $250,000 limit on damages in medical malpractice cases for disfigurement, impairment, pain and suffering. The limit does not restrict damages for out-of-pocket expenses, such as medical bills and loss of income.

Courts have also been placing limits on the ability of experts to testify in malpractice cases. Defendants now have the ability to argue to the court that an expert should not be allowed to testify to a particular theory on the grounds it is not based on sufficiently reliable scientific data. These new restrictions may make it even harder to find a qualified expert witness.

Medical malpractice cases have always been complicated. In recent years they have become even more challenging. But with the help of an experienced attorney who practices in the field, a victim of a surgical error or hospital negligence can still receive the compensation to which he or she is entitled.

Source:, “The changing field of medical malpractice law: A conversation with attorney Benjamin Cittadino,” Emily Brill, Oct. 21, 2012

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