The jury is still out on a new law requiring "affidavits of merit" to accompany the filing of medical malpractice lawsuits in Delaware.
Since October 2003, any person claiming to be the victim of medical negligence must submit an affidavit from a qualified medical expert stating that there are reasonable grounds to believe that a defendant has been negligent.
The law was intended as a barrier against potential frivolous malpractice lawsuits, which even defense attorneys admit have not been a big problem in Delaware.
Trial lawyers say they agreed to the new requirement in a "good faith" effort to demonstrate that there is no problem with frivolous lawsuits.
"It's a big hurdle, but we don't mind because it just makes sure the lawyers have crossed their T's and dotted their I's before filing a lawsuit," said Randall Robbins, immediate past president of the Delaware Trial Lawyers Association.
A recent court ruling suggests that judges are taking the law seriously.
In September, Superior Court Judge Fred Silverman rejected affidavits of merit in a New Castle County lawsuit, ruling that the documents were too equivocal. In the affidavits, two experts stated that the alleged breach of the standard of care was "a proximate cause of and/or was a substantial contributing factor to the injuries suffered by the plaintiff."
Silverman noted that under Delaware law, negligence has to be more than a "substantial factor" in a patient's injury. He said the court required "unequivocal assurance" that the plaintiffs and their experts were prepared to meet the more rigorous "proximate cause" standard.
The judge gave the plaintiffs three weeks to amend the affidavits, which they did.
"The court's leniency is appropriate because although the current affidavits of merit can be read as insufficient, they also can be read as meeting the statutory requirements," Silverman wrote. "Moreover, the affidavit of merit requirement is new and we are still feeling our way along."
While some say it's too early to tell whether the law is having its intended effect, statistics suggest that the number of malpractice lawsuits has dropped since the law took effect.
According to the Superior Court prothonotary's office, 82 malpractice lawsuits, virtually all involving alleged medical negligence, were filed in New Castle County in fiscal 2003. In fiscal 2004, which began three months before the new law took effect, there were 67 filings. In the current fiscal year, the court received 19 filings from July through November, a slower pace than in the previous year.
Statewide, 28 malpractice lawsuits were filed in the first five months of this fiscal year, compared to yearly totals of 93 in fiscal 2004 and 105 the previous year.
Representatives of the trial lawyers association say their numbers also show a reduction in malpractice filings.
Robbins said a provision that allows lawyers to extend the normal two-year statute of limitations by filing a notice of intent to explore a potential negligence claim has helped cut down on the number of actual lawsuits.
"In the past, we would have had to file in order to toll the statute of limitations," said Robbins, noting that lawyers sometimes have determined after filing notices of intent that there is no basis for proceeding with a lawsuit.
Richard Galperin, an attorney who specializes in medical malpractice defense, said the law appears to be working as intended.
"It's hard to say whether it has had lessening effects," he said. "I'm optimistic that it will result in a reduction of frivolous filings."
Even so, some doctors believe the law doesn't go far enough and needs to be changed.
"We're not sure how it's working because you don't know how many lawsuits have been prevented," said Joseph Hacker III, M.D., past president of the Medical Society of Delaware and current chair of its legislative committee. "We do know that it's not working in some situations."
According to Hacker, doctors in Delaware, as in some other states, are concerned that the names of physicians who sign affidavits of merit are kept confidential by the court.
Hacker said such anonymity makes it difficult for a doctor who is unfairly accused to confront his accuser. He cited one instance in which a doctor was named in a lawsuit simply because he happened to be in the room when a patient he had never seen before was pronounced dead.
"It's like a black box," Hacker said of the anonymity provision. "We need to find a way to open the process up."
Galperin said doctors in some states have developed a "cottage industry" of signing affidavits, knowing they are shielded by anonymity from being challenged.
"That's garbage," said Bruce Hudson, current president of the trial lawyers association.
Hudson said trial lawyers insisted on anonymity for affidavit signers as a condition for agreeing to the new law. Providing the name of a plaintiff's expert witness to a doctor and his attorney before required to do so under a trial scheduling order would give the defendants an unfair advantage, he said.
Robbins noted that during negotiations last year, the trial lawyers offered to give up anonymity in affidavits of merit if the doctors agreed to identity their expert witnesses in affidavits of "meritorious defense."
"They refused to do that," said Robbins, adding that a defendant usually learns who signed an affidavit of merit because the person winds up testifying in court.
"Ninety-nine times out of 100, the person who signed the affidavit is the person you're going to trial with," he said.
Trial lawyers vow that they will fight any attempt by the doctors to persuade lawmakers to remove the anonymity provision.
"They're going to get their hat handed to them," Hudson said. "If they don't like (the law), then let's get rid of it."
Trial lawyers say the deck is already stacked against patients in Delaware, one of only a handful of states that require unanimous verdicts by 12-person juries in malpractice cases, and one of only three states that do not allow lawyers to question potential jurors.
"We're going to insist on fairness," Robbins said.