Cases settle for many reasons besides clear evidence of malpractice. The doctor may feel his care was proper, but the potential damages far exceed his insurance limits; he doesn’t want to lose two weeks or more from his practice, listening to his treatment being derided as butchery and charlatanism; the insurance company settles w/o his consent because the demand drops below the cost of defense, or because they doubt his ability to convince a jury. Some malpractice policies have a consent-to-settle clause, but when they don’t, the doctor’s desire to compensate the plaintiff will not be the deciding factor, and may not even be recorded in the claim file. Thus I doubt even a risk management department or insurance company could really tell you this.

Hard to get a good picture of a problem when you cannot see actual numbers.

Imagine someone trying to tell doctors about a well known disease, and offering a fix – but not offer any numbers. They’d FREAK! For good reason.

Two of my clients, a family practitioner and a dermatologist, called their insurors and requested that their policy limits be paid immediately upon learning of the consequences of what they themselves felt to be their substandard treatment. This is rare. Much more common are the doctors who ask that their cases, though defensible, be settled b/c they are not entirely satisfied with the quality of their care. I have represented dozens of these; very typical is a current client, for whom I obtained two supportive expert reviews. He told me, “It’s true that my care met the minimum standards for [my specialty], but I try to practice better medicine than the minimally acceptable. I didn’t meet my own standards in this case, the patient was injured as a result, and I’d like her to get compensation.” So that’s what’s happening.

You have to get an expert to testify that your lawyer deviated from professional standards, that the deviation caused the loss, and that nothing intervened to cause it as well. OK you have done all that, which is already nearly impossible.

Next, you have to prove your original case. You have to try your case over again, and win it this time around. That means a whole trial in a trial, with medical experts and the works. OK. This is impossible but you get it done.

Now, you have to prove you could have collected from the original defendant. You have to get the original defendant’s financial records, and show how you reach them.

Good luck with that. So the lawyer is really immune from any accountability. The system is rigged airtight in the lawyer’s favor.

That leaves only self help. You are better off just going after the lawyer with a baseball bat, and break a bone until it agrees to pay.

It is worth noting, however, that there seems to have been a critical factual dispute in this case arising from the blood on the abdomen. That wasn’t just some fantasy of the plaintiff, it was apparently in the EMT record, too, for whatever reason, and I think WhiteCoat admits that, if that was true, it would be pretty damning.

As for “manipulation,” there’s a real question about where “advocacy” ends and “manipulation” begins. Nonetheless, I’ve never done the “GOTCHA!” tactics with yes/no questions before, not least because I doubt it would work, it would just get you nailed by the other side when they got up for questions and pointed out the trick.

That brings to mind a funny story about David Boies, one of the best litigators / trial lawyers in America today. Back in the Microsoft case, one hostile witness got flustered by the questions Boies would ask, and started to lose his composure and start blubbering.

So Boies said: “would it help if I raised my hand every time I asked a tough question so you could think about it before answering?”

The witness said yes.

So Boies did.

Great lawyers don’t use tricks.

That said, numerous doctors compromise on future bills when the future procedures are due to their errors (I won’t said “malpractice,” that’s a loaded word) in the past. That’s a form of compensation.

I doubt you’d find public numbers of how often doctors offer compensation. The best you could do is try to ask a risk management group in a hospital and, well, they’re not like an open book.

Short answer is yes, a person can sue a lawyer. No doubt about it. If your question is can they win, it’s hard to say. With any professional malpractice, you’ll have to establish the standard of care was breached. Then you’ll have to establish that but for that mistake, you would have prevailed.