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Tort reform key issue in Senate race

Thursday, October 28, 2004 | 12:00 a.m. CDT; updated 10:17 a.m. CDT, Wednesday, July 9, 2008

When Mike Ditmore started practicing neurosurgery in 1980, trial attorneys almost immediately began to seek the doctor’s advice in medical malpractice cases. Over the past two decades, Ditmore served as an expert witness in several trials from Missouri to Tennessee to Florida, for which he earned $1,000 to $2,000 a day.

As an expert witness, Ditmore saw firsthand how his testimony could affect a jury’s verdict. What he said on the stand helped decide a doctor’s guilt or innocence and how much compensation a malpractice victim might receive.

Now, Ditmore, a Republican, is running for the 19th District state Senate seat on a platform that calls for tort reform. Ditmore retired earlier this year.

He says that Missouri’s skyrocketing medical liability premiums are directly linked to what he calls “excessive, arbitrary non-economic damages” awarded to malpractice victims by juries. Indeed, he says his own rising premiums were part of the reason he retired.

Ditmore joins Republican Party leaders, including President Bush and gubernatorial candidate Matt Blunt, in calling for a limit on “pain-and-suffering” awards.

In Missouri, the current cap on pain and suffering is $565,000 with inflation. A 2002 state appellate ruling, known as the Scott decision, effectively removed the cap by allowing juries to award compensation for multiple incidents or multiple injuries within the same case.

Ditmore wants to repeal this decision.

Democrat Chuck Graham, Ditmore’s opponent, thinks Ditmore’s experience testifying in cases that resulted in high awards for plaintiffs is contradictory.

Graham said there is a discrepancy in the neurosurgeon’s past and his current position on tort reform.

“I don’t think you can have it both ways,” Graham said. “I don’t know how you say ‘I want to help doctors’ when you testify as a plaintiff’s witness, making $600 an hour, against your fellow doctors.”

Ditmore said that questions about his credibility are unfounded and that his political beliefs held no sway in the courtroom. In his defense, Ditmore said he worked as an expert witness for the plaintiff just 5 percent of the time; the other times he testified or reviewed documents for the defense.

Ditmore also noted that he was never involved in cases where the jury awarded multimillion-dollar damages.

He believed he had a professional and ethical duty to provide his medical knowledge and he never sought out cases. Lawyers contacted him.

“Your job is to deliver expert testimony; not to sway, not to advocate, just to give the facts,” Ditmore said.

Michael Burks, president of the Boone County Medical Society and a local obstetrician gynecologist, said that an expert witness’s political opinion on tort reform is irrelevant. He thinks doctors are ethically obligated to testify if they know a fellow physician has failed to practice the necessary standard of care — regardless of their political stance.

Russell Pelton, general counsel for American Association of Neurological Surgeons, agrees.

“The medical profession has the duty, both collectively and individually, to step up and advise the court when malpractice has actually occurred, but that, when doing so, to testify honestly, impartially, and within your area of expertise,” Pelton wrote in an e-mail response to the Missourian.

Medical expert testimony can be an expensive component of a malpractice trial. Reviewing a case involves evaluating medical documents to see if the necessary standard of care was met. For this, Ditmore charged $150 to $200 an hour. If a lawsuit was filed, then Ditmore was at times asked to give a deposition or testify.

Although Ditmore said he charged only $1,000 to $2,000 a day for testimony, some witnesses can charge as much as $10,000 a day, Pelton said.

Ditmore, who was recommended to lawyers by his insurance company, said he reviewed only a few cases a year and served as a witness “half a dozen times, maybe not even that many” during his entire 20 years in medicine. Over the span of his career, Ditmore himself was sued for malpractice eight times. Seven of those cases were dismissed before going to trial, and he was found not negligent in the eighth case.

He has no plans to serve as a witness in the future.


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