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Doctors’ group opposes repealing ’20 percent rule’ for experts in med-mal trials

ANNAPOLIS –Maryland’s main physicians’ organization is urging the House of Delegates to reject Senate-passed legislation that would permit doctors to spend more time testifying as experts in medical malpractice cases.

Senate Bill 30 would repeal a 30-year-old law that limits to 20 percent the amount of a doctor’s professional activities that can be devoted to courtroom testimony and related activities – such as pre-trial preparation – in malpractice cases.

MedChi, The Maryland State Medical Society, has hailed the “20 percent rule” as a hedge against doctors essentially specializing in courtroom testimony and serving as what the group assails as “professional witnesses” for plaintiffs in malpractice cases.

The Maryland Association for Justice, an organization of plaintiffs’ attorneys, endorses repeal of the 20 percent limit.

The Senate passed the repeal measure on a 29-16 vote this month. The House Judiciary Committee is scheduled to hold a hearing on the bill March 28.

Gene Ransom, MedChi’s CEO, sent a tweet Monday urging the group’s members to tell their delegates to oppose SB 30.

“The ’20 Percent Rule’ ensures that parties in a medical malpractice case must use practicing medical professionals rather than witnesses whose main source of income is derived from testifying in medical malpractice cases,” Ransom wrote in a letter accompanying the tweet to members.  “MedChi will try its best to stop this bill from passing in the House. If we fail in the House, MedChi will ask Gov. (Larry) Hogan to veto this legislation.”

But the Maryland Association for Justice stated in written testimony to a Senate panel the 20 percent rule has led to protracted litigation because plaintiffs and defendants have fought over whether a medical expert has spent more than one-fifth of his or her practice on court-related matters.

“The 20 percent rule does not reduce the time and expense of malpractice litigation because the issue of whether a doctor satisfies the 20 percent rule can be the focus of hours of expensive discovery, and hours more of valuable time in court,” MAJ told the Senate Judicial Proceedings Committee.

The association added that the 20 percent rule should be repealed in favor of a “rebuttable presumption” that a medical specialist in the field at issue in the case can serve as an expert witness.

Joining MedChi in pressing to defeat the legislation are the Maryland Hospital Association, Johns Hopkins Medicine and Medical Mutual, a liability insurance society that serves doctors and hospitals.

“Medical liability cases are very complex, and an expert should be just that – an expert in the same or similar practice as the defendant in order to provide a meaningful opinion to the trier of fact on the quality and standard of care in question,” Medical Mutual stated in written testimony to the Senate Judicial Proceedings Committee. “Removing the 20 percent rule has the potential to create full-time professional witnesses who have little or no knowledge of the constantly changing and evolving practice of health care. Judges and juries benefit from experts with practical expertise in their field, not from expertise in providing testimony in personal injury actions.”

The Senate committee approved the repeal legislation on a 10-1 vote before sending the bill to the full Senate. Sen. Robert G. Cassilly, R-Harford, was the panel’s sole dissenter.

Sen. Victor R. Ramirez, D-Prince George’s and a committee member, is chief sponsor of SB 30.

Similar repeal legislation was introduced in the Senate last year but died in the Judicial Proceedings Committee without receiving a vote.

The 20 percent rule has applied to all medical-malpractice claims filed after July 1, 1986.


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2 comments

  1. skurlander@sfspa.com

    Having practiced medical malpractice law as both a plaintiff and defense lawyer in Maryland for the last 20 plus years, I believe there is a fundamental misunderstanding of the 20% rule and its rational for enactment many years ago has not borne itself out in the practice of med mal law in this State.

  2. tyost@yostlaw.com

    According to a published Johns Hopkins study, medical errors are the third leading cause of death in the United States of America . Hospitals and doctors hire highly qualified trial lawyers to defend medical professionals. Certainly those lawyers can cross examine and discredit any expert who is not qualified or biased. The repeal of the 20% would not cause a single additional case to be filed that we would already pursue. But, the repeal of the 20% rule would put the court’s focus on merits of the case and not on litigating an administrative technicality.