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Changing the Rules 

When it comes to malpractice litigation, reform is in the eye of the beholder. To the medical community, so-called "reforms" engineered by Gov. John Engler in 1994 were a virtual godsend that brought some sanity to what they described as an out-of-control situation.

"Michigan's new liability law is one of the top three laws like it in the country," Dr. Thomas E. Stone said at the time. "It should lessen the number of suits filed."

Because such lawsuits take so long to work their way through the court system, it's too early to determine if that prediction has proved true.

But there is no doubt a mandatory waiting period has resulted in delaying the entire process for families like Mable Tubbs Johnson's. As part of Engler's tort overhaul, a mandatory 182-day waiting period was instituted before plaintiffs can file a malpractice lawsuit.

Supporters of the change say it helps weed out frivolous lawsuits and encourage settlements without incurring expensive litigation.

Lawyers for plaintiffs see it as a way to delay justice for people already coming up against a stacked deck.

According to Carol McNeilage, president of the Michigan Trial Lawyers Association, attempts by hospitals and doctors to cover up mistakes are common.

It starts with something as simple as denying patients or their survivors access to medical records. Or, if they are provided -- often at a cost of $1.50 a page or more -- crucial documents are missing.

"Many times you get records and a key page is missing," says David Parker, a malpractice attorney with the Detroit firm of Charfoos and Christensen. "Mistakes can happen, but humanity seems to keep cropping up at the exact point where it would prove what did or didn't happen in a case."

Adding to the problem, says McNeilage, is the growing used of computerized records.

"There may or may not be a hard copy of the records you request," she explains.

Three plaintiffs' attorneys interviewed by Metro Times said that, although it doesn't happen in the majority of contested cases, it is nonetheless common to have records "doctored"--even though doing so is a criminal offense under Michigan law.

Parker's firm, for example, has a file of experts in handwriting and document alteration that use such techniques as ink and paper dating to determine whether files have been changed.

There is also a frequent occurrence that reports are "tailored so that they say what they have to say so that what happened is nobody's responsibility," observes Parker. "They want it to look like just one of those things."

Dave Fox, spokesperson for the Michigan State Medical Society, finds such accusations hard to believe.

"I know that doing so is a pretty serious offense," says Fox when told of plaintiffs' attorneys' complaints about document alteration. "I think there may be bit of hyperbole there."

"We teach courses on risk management, and one of the main things taught is appropriate record keeping," Fox adds. "The best defense is clear, concise record keeping."

Which is one thing he and McNeilage of the Trial Lawyers Association agree on. Only McNeilage stresses that it is patients who need to keep the records.

"I always recommend to my clients and friends that they ask for hard copies of test results and X-rays as you go along so that you have your own copy," she says.

It is all part of taking more control of their treatment.

"If you really want to be safe," says McNeilage, " you have to take a lot of responsibility for your own medical care. Know what's wrong with you and read medical articles on your condition. Question the qualifications of people providing treatment. If you ask questions, people will be aware that you know what's going on.

"And do not accept a pat on the head and the words, 'Don't worry, we'll take care of you.' You are your own best protector."

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October 28, 2020

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