This Article assesses the use of physician practice guidelines as a vehicle for medical malpractice tort reform and focuses upon the State of Maine's legislation incorporating physician practice parameters into the defense of medical malpractice litigation. The Maine Medical Liability Demonstration Project (the “Demonstration Project”) legislatively adopts practice guidelines in four different medical specialties and allows physicians in those specialties to assert compliance with the applicable guideline as an affirmative defense. The affirmative defense of compliance with such guidelines has been touted as a means of protecting physicians from, and decreasing the costs associated with, medical malpractice litigation. While the statutory mechanism remains untested, analysis of the legislation reveals the practical implications and limitations of the enactment. Only in a very narrow window of cases will the statute, particularly the affirmative defense of compliance, be advantageous to physician-defendants in reducing (but not completely eliminating) the length and complexity of a medical malpractice suit. Notwithstanding the laudable goals underlying the legislative guidelines, success will be thwarted by two significant obstacles. First, the entire legislative scheme for guidelines was designed without consideration of the implications presented by the requirements of Maine's mandatory prelitigation screening panel for medical malpractice cases. Imposition of these screening criteria on the practice guidelines' statutory framework almost entirely undermines any hope of avoiding the lengthy procedures associated with the defense of a medical malpractice suit. Second, the legislation suffers from two potential constitutional infirmities: denying plaintiffs the right to a jury trial and denying plaintiffs the use of evidence regarding guidelines. This Article reviews both the practical procedural effects and the constitutional issues triggered by the legislation.
Jennifer S. Begel,
Maine Physician Practice Guidelines: Implications for Medical Malpractice Litigation,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol47/iss1/4