Where is tort reform headed? Caps, safe harbors—perhaps nowhere? The jury is out. Caps (financial limits) on noneconomic damages, review panels, and many other seemingly viable strategies have been implemented with mixed but overall disappointing results. Safe harbors, providing legislative protection for following decided-upon standards, are a far-reaching goal that has gained some traction in the past year. However, if you’re waiting for a safe harbor, you’ll run aground with respect to liability reform while waiting for its protection. Perhaps the most viable solution at our fingertips is adjusting the standard for negligence (ie, ordinary negligence to gross negligence) in medical liability tort claims. This is often confused with the “burden of proof” required to prove your position. The burden of proof for “ordinary negligence,” the current standard in medical malpractice cases, is defined as a “preponderance of evidence.” The other end of the spectrum is “beyond a reasonable doubt,” the standard for criminal cases. Somewhere in between is the “clear and convincing” standard in which plaintiffs would need to prove that it is substantially more likely than not that their allegation is true. Although this is beyond the scope of this article, several states have or are pursuing adjustments to the standards for the burden of proof.

A Possible Solution?

Perhaps the most intriguing avenue, which is also related to burden of proof, is the duty standard. If you have a duty to act, what is the standard of care required to fulfill that duty? For ordinary negligence, the standard is one of reasonableness: what a reasonable provider with similar training would do in a similar situation. Doesn’t it sound reasonable that much of what we do while practicing the art of medicine could be deemed reasonable? Yes, if someone else wasn’t trying extra hard to prove exactly the opposite. Herein lies the problem—and the ray of hope with changing the duty standard, which appears to be one of the most viable solutions for tort reform currently available. If the duty standard were changed to a standard much further from normal practice, we could easily identify when negligence really has occurred. With the current reasonableness standard, variations in practice and patient outcomes are all too often deemed negligent. Despite the fact that we all try very hard to provide the highest quality of care possible, reasonable choices may result in unanticipated and even disastrous outcomes. Should a well-intentioned provider be subject to allegations of negligence under such circumstances? In our opinion, absolutely not. Using a gross negligence standard would require that the provider’s actions are less reasonable than what would be required under an ordinary negligence standard, and it would identify cases in which little or no care at all is being taken to provide acceptable quality of care. Such a standard should result in identifying those cases in which the duty to the patient was clearly breached, avoiding labeling cases of medical nuance as negligent. Gross negligence is defined as reckless behavior or conscious disregard for the risk of one’s actions, actions so unreasonable that a layperson without medical training could easily recognize the negligence with little or no need for expert witness testimony. In addition, when the allegation is more serious (eg, gross negligence), the burden of proof is often simultaneously increased. In most jurisdictions, the burden of proof for gross negligence requires clear and convincing evidence as opposed to just the preponderance of evidence, which is most common with the ordinary negligence standard.

Legislatively, these are hard-fought battles, and even when won, sometimes the new laws are overturned on appeal to state supreme courts by a tenacious plaintiff’s bar. Forces undermining these new standards are even closer than we think. Our colleagues providing expert witness testimony for plaintiffs may knowingly or unknowingly undermine the use of increased negligence standards and the burden of proof. They are the expert witnesses who testify falsely, misleadingly, or in a biased way, propagating and fueling our litigious medical-legal environment. We have an obligation to identify those who are violating the ethical obligations of the expert witness and to ensure unbiased testimony in our courts for a more level playing field, guaranteeing the most appropriate legal outcomes.

Case in Point

As an illustrative example, in 2010, Georgia passed a major tort reform measure. This measure requires a plaintiff to present “clear and convincing evidence” to prove gross negligence has occurred. The legislative initiative is applied to emergency medicine cases.

“[G]ross negligence is the absence of even slight diligence, and slight diligence is defined…as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of diligence that even careless men are accustomed to exercise.” Johnson v. Omondi GA Sup Ct. decided Nov. 14, 2013, p. 7. O.C.G.A. § 51-1-4

Even the Supreme Court of Georgia recognizes that this is a confusing definition, particularly as applied to medical malpractice cases. However, many other courts have simply stated that gross negligence is a significant deviation from negligence. While it may yet be ill-defined by case law, it is meant to be a very high hurdle to overcome. This legislative change is a very positive movement in tort reform and has the ability to prompt meaningful tort reform in many other states. However, a single expert witness who convinces a jury that a case constitutes gross negligence, even if the majority of the medical community would disagree, can nullify the risk-management benefits and legislative momentum gained. When we hear of or see such testimony, be it from the defense or plaintiff, we have an obligation to scrutinize it and act accordingly.

The above-cited case included testimony for the plaintiff from emergency physicians Peter Rosen, MD, and Steven Gabaeff, MD. Remember, if the standard of negligence in Georgia is one of gross negligence, then the testimony provided is to support the allegation that the defendant physician was grossly negligent. An argument could be made that if gross negligence is not clear, then this matter is not appropriate for advancement in the legal system, and summary judgment may be awarded. However, when it is determined that sufficient evidence exists to support the gross negligence allegation, then this may become a matter of fact and not of law. A jury deliberates matters of fact, and matters of law are decided by the court (ie, judge). In order to find sufficient evidence to pursue the question of gross negligence, qualified expert witnesses must have provided testimony to that exact fact. So the plaintiff’s experts in this case were willing to testify that the physician was grossly negligent. Although admittedly an oversimplification of the facts, the patient presented with an unusual left-sided chest pain. A history was obtained, and he was examined. Several tests (eg, electrocardiogram, chest radiograph, etc.) were ordered, and the patient improved with symptomatic treatment and was discharged. He died two weeks later from a pulmonary embolism. An ideal outcome? Of course not. A complicated case? Probably. Grossly negligent (reckless care)? Not even close.

Testimony that goes beyond what is medically certain or reasonable may result in unfair outcomes in individual cases, but more important, such testimony undermines the validity of the gross negligence standard and the clear and convincing burden of proof, thus damaging our ability to achieve meaningful tort reform nationally. All expert witnesses need to be aware of the far-reaching implications of their testimony and must read and comply with the ACEP policy “Expert Witness Guidelines for the Specialty of Emergency Medicine,” available at http://www.acep.org/Clinical—Practice-Management/Expert-Witness-Guidelines-for-the-Specialty-of-Emergency-Medicine.

Dr. Klauer is director of the Center for Emergency Medical Education and chief medical officer for Emergency Medicine Physicians, Ltd., Canton, Ohio; on the board of directors for Physicians Specialty Limited Risk Retention Group; assistant clinical professor at Michigan State University College of Osteopathic Medicine; and medical editor in chief of ACEP Now.

Dr. Stankus is an emergency physician for Group Health Physicians in Seattle; chair of the ACEP Medical Legal Committee; a former medical malpractice defense attorney; a medical legal consultant; and a member of the editorial board of ACEP Now.