A proposed bill in the Utah State Senate would make it more difficult for claimants to prove their cases where the allegation of malpractice takes place in an emergency room setting. That bill – SB 79 – raises the evidentiary bar for a claimant from “the preponderance of evidence” to “clear and convincing evidence.” A preponderance of evidence is merely a “more likely than not” test – 50.00001%. Proving clear and convincing evidence is a much higher bar. Proponents of the bill say that law is necessary to keep surgeons practicing in emergency rooms. Opponents say that it gives doctors virtual immunity against suits in the emergency room setting. As always, the insurance industry’s role in tort reform is not part of this debate. When you consider that the industry reports record profits each time it has to pay out record amounts from major disasters, it only makes sense that insurance reform should always be part of any proposed tort reform.
Another aspect of SB 79 is that it seeks to subject out-of-state medical experts to disciplinary action if they give testimony that is false or is lacking a scientific basis. Of course, it is always the claimant who has to use out-of-state medical experts because it is extremely rare for one in-state doctor to testify against another. If the standard is to be applied equally against in-state doctors as well as out-of-state doctors – fine. If you believe that, however, then you probably believe those e-mails that you get from foreign dignitaries promising you millions if you just send them a few thousand so that they can get to their safety deposit box in Zurich.
Cum Laude graduate of Cumberland School of Law, Pet Mackey is a civil trial litigation expert who represents plaintiffs in business and consumer tort, contracts and construction, employment disputes and insurance. He is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy, a Certified Alabama Mediator, and an “AV” rated lawyer by Martindale-Hubbell.