Most conservatives would say that state, not federal law, should address issues such as tort reform, medical malpractice, legal procedure etc. I agree these issues should not be decided in Washington, but a close examination of state laws reveals how very different we are.

In Virginia, you can file a Medical Malpractice lawsuit without having supporting experts. You cannot however, serve the lawsuit (which means start the clock) without having your experts certify in writing, that the defendant was negligent and that his/her negligence caused harm to your client.

West Virginia and Maryland both go much further and require the plaintiff to provide a written opinion by the experts, before you can even file or serve the lawsuit. This puts the defendant in a great position strategically – they get to see all of the plaintiff’s cards before the case even begins.

I read this morning that other states are going in the opposite direction. Arkansas just found that requiring expert certification before one could proceed with a medical malpractice lawsuit, was unconstitutional. The court’s reasoning was based on the financial burden on the plaintiff in having to hire experts in order to access the courts. Apparently Oklahoma has done the same thing.

The cost of litigation is a very real consideration for all plaintiffs, and certainly discourages filing even valid lawsuits. Is there a solution? I don’t see an easy one. Defense attorneys claim that frivolous lawsuits drive up the cost of healthcare, and that requiring pre-litigation expert certifications is one minor step at weeding out frivolous suits. Plaintiffs however, know all to well that valid cases will never be pursued because average working families don’t have $30,000 set aside for malpractice experts.

Just another example of our courts being inconsistent.

About the author

Dan Frith

Dan Frith has over 25 years of experience representing individuals and families in cases of medical malpractice throughout Virginia. He has been named "Best Medical Malpractice Attorney" by Roanoker Magazine and is a member of the Million Dollar Advocates Forum. To speak with Dan, contact him by email at dfrith@frithlawfirm.com.

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