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Unsealing Medical Malpractice Settlements – A Win For Patient Safety

A New Jersey Superior Court’s recent decision to unseal malpractice settlements against doctors is a significant step in strengthening consumer protection in the practice of medicine. It is a step which is long overdue.

This decision will allow patients to protect themselves from bad doctors. For too long, doctors with multiple or catastrophic malpractice records have been able to continue practicing without fear of public scrutiny or outcry. Now patients will be able to make informed and educated decisions when choosing a doctor.

Make no mistake, the vast majority of doctors are competent, skilled, and serve the public well. Unfortunately, as in so many other areas of life, one rotten apple can spoil the bunch. The entire medical profession should not be blamed for the incompetence, negligence or criminal acts of a small minority of doctors. However, the profession should be held accountable for its historical insistence on protecting rogues and repeat offenders.

Particularly questionable is the New Jersey Medical Society’s blind insistence on imposing caps on awards for medical malpractice. This position ignores the profession’s responsibility to protect patients. Doctors must be willing to police their colleagues and expel incompetent doctors from the practice. These steps will improve patient care, increase public confidence and reduce the incidents of medical malpractice.

The medical society’s position on caps stems from its desire to reduce the cost of malpractice insurance for its members. This position is misguided. Allowing bad doctors to hide behind the curtain of confidentiality helps no one, least of all the patients. Furthermore, this position perpetuates the present medical malpractice insurance rate regime in which insurance companies charge good doctors higher premiums to offset the risk of insuring bad doctors.

The medical society’s goal should be to reduce the number of malpractice incidents. Reducing the amount of malpractice incidents, not the amount of malpractice awards, will reduce the cost of malpractice insurance.

Opening malpractice settlement records is especially appealing because it provides a free market method of reducing the costs of medical malpractice insurance, whereas caps are a direct interference on both our economic and judicial systems. When a restaurant receives bad reviews, the public stops going and the restaurant closes. Hopefully, now, if a doctor’s record of negligence and incompetence is exposed, patients make a change and the doctor will finally bear some individual responsibility for his or her actions. Reducing the number of bad doctors in practice will reduce the amount of malpractice incidents, cutting the cost of malpractice insurance for the good doctors who for too long have paid to cover the mistakes of a small number of inept peers.

The court’s ruling will also highlight the records of our state’s outstanding physicians, and patients will enthusiastically seek treatment from doctors with good records. The increased number of patients and lower cost of malpractice insurance will provide doctors with a financial incentive for maintaining a clean record and policing their profession.

The ruling directly protects doctors as well. Doctors will be informed when their records are made public and will have the right to review and challenge specific items. This provision should alleviate doctors’ understandable concern that their reputations not be tarnished by inaccurate or mistaken records.

Public confidence in both the competence of the medical profession and the quality of medical care is vital to sustaining healthcare in our society. Allowing patients to research their doctors’ malpractice records will increase the public’s confidence in the medical profession. The court’s decision is sunshine for both consumers and doctors, shining light on the darkest and most hidden aspect of healthcare in our state. Hopefully the New Jersey Medical Society will agree.

Senator Sarlo represents the 36th legislative district, which includes parts of Bergen, Essex and Passaic counties. He is vice chairman of the Senate Law, Public Safety and Veterans Affairs Committee, and is a member of the Senate Judiciary Committee and the Budget and Appropriations Committee.

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