THE CALIFORNIA MEDICAL MALPRACTICE PICTURE

摘要

The California physician's steadily increasing risk of legal liability poses a basic question: Will he ultimately wind up a guarantor of results, carrying a great burden of malpractice insurance in order to pay for every untoward result of medical treatment? This alarming prospect is the result of many years of judicial (and therefore lay) speculation on the legal significance of the injury which brings the patient into court. Does it look as though this injury probably is associated with medical negligence? If so, let the doctor explain. And the explanation must be very complete.The legal instrument which thus reverses the traditional requirements of proof, permitting the patient-plaintiff to remain silent while the doctor-defendant must exculpate himself, is an evidentiary doctrine called res ipsa loquitur—the thing speaks for itself.The application of the doctrine relieves the patient-plaintiff of the necessity of producing an expert witness to point the finger and say, “The medical conduct that produced this injury was sub-standard.” The increased use of the doctrine reflects a judicial conviction that in many parts of California physicians refuse to testify for the patient-plaintiff regardless of the merit to his case.A recent California Supreme Court decision suggests that the Court is not unaware of the adverse social consequences implicit in the irrational expansion of the physician's risk of legal liability. But a reversal of this trend would seem to be contingent on positive conduct from the medical profession in California—conduct demonstrating that no meritorious patient-plaintiff will fail in his malpractice lawsuit for lack of an expert medical witness.