Closing arguments were underway when I arrived in court.
As I walked into the courtroom, several of the jurors looked up at me and smiled.
“Good sign, especially the way I look,” I thought to myself.
The Grinch had already finished his initial closing arguments. Louise was discussing my case when I walked to the table. As I sat down, the codefendant physician whispered in my ear that the plaintiff wanted $2 million as reasonable compensation for my alleged failure to call a surgeon soon enough. I stopped and looked at him for a second. He raised his eyebrows as if to say “poker face.” I sat back down and felt my blood start to boil.
They settled out with one hospital for $250,000. Now they want 8 times that much from us?
The doc then leaned over to me again and whispered “His first two hours of closing arguments were a bunch of lies. I really want to strangle that guy right now.”
I thought to myself “Are you TRYING to make me go postal in the middle of this courtroom?”
I took a liking to the Tom Petty song “I Won’t Back Down” during the prior few weeks. Those words “You could stand me up at the gates of hell but I won’t back down” ran through my mind right then.
Zen master. Be calm, mind. Take deep breaths. Ahhhh. Better.
When my thoughts settled down and I tuned myself into closing arguments, Louise was summing up our case.
“If you believe that Dr. WhiteCoat performed as a reasonably well qualified physician under the same or similar circumstances, you should vote in favor of the defendant. If you believe that it was not required to call a surgeon when the patient arrived in the emergency department, you should vote in favor of the defendant. If you believe that the patient would have died no matter what Dr. WhiteCoat did, you should vote in favor of the defendant. And if you believe that the patient did not suffer any damages based on Dr. WhiteCoat’s actions or failures to act, you should vote in favor of the defendant.”
Hearing her say these things made me very emotional for some reason. I was probably just tired. I was a lot more confident about this case before today. Then all of these bizarre thoughts started running through my head.
What if the jury decided to award the plaintiffs $2 million? That was $1 million more than my policy limits. I would be bankrupted. What would happen to me? What would happen to my family? I would have to appeal the verdict.
Maybe I would enter into a settlement arrangement with the plaintiffs attorney where I just paid the policy limits. But what if he would not agree to that?
Boy, my head was really spinning.
I looked around the courtroom and saw several new faces watching from the stands. The plaintiff’s daughter was sitting with a group of other people. There were several other people sitting in a small group that I did not recognize. I later learned that they were attorneys from another law firm that were “sizing up” some of the attorneys here today. Another one sitting alone was the representative from my insurance company. She had been to court a lot lately. She saw my head turn and smiled calmly at me. That seemed to stop my head from spinning so much. I am glad I looked over and saw her. Of course, if she had given me one of those other “looks” after hearing the Grinch’s closing argument, I think I would have had a nervous breakdown on the spot.
Louise reminded all of the jurors that she was not going to have the chance to stand back up and rebut what the Grinch would later say. The plaintiff had the burden of proof and therefore was given the opportunity to begin the closing arguments and to end closing arguments. She reminded them to all make their decision based upon the evidence, not based upon sympathy. She said that she knew sympathy existed, because the jury was not a bunch of “Bobs,” but that the law stated that the jury could not base their decision on sympathy.
I think she wanted everyone to laugh at her “Bobs” comment, but I don’t think anyone understood it. After making the comment, she hesitated for a moment, like a comedienne waiting for the audience to laugh. All we heard was the court reporter clicking away on the keys of her stenotype machine. When even that noise stopped, Louise stammered a little then continued. After a few more sentences, she thanked everyone for taking the time out of their schedules to sit on the jury, then she bowed to them and sat down.
I looked over to the plaintiff’s table. The Grinch was busily writing things down his notepad. This is where attorneys really earn their money during a trial. They have to think on their feet and change their strategy in mid-stream. I am sure that the Grinch was creating responses to the things that Louise had just finished saying, but he had to do so while still listening to what the hospital attorney was going to say. Tough predicament for him to be in. “Good,” I thought.
While the hospital attorney was making his closing argument, I noticed that he didn’t introduce the hospital representative. I looked over and she wasn’t there again. She had been missing several days of trial over the past week. Her child was sick two days last week and was sick again today. Hope he feels better.
I liked the hospital attorney’s technique with evidence. He described how the Grinch stated that there was “no evidence” that several things occurred in the case. The hospital attorney set up a big poster board on an easel right in front of the jury while he was talking. As he was talking, he would refer to things from the medical record, such as my notes, the notes from the surgeon, notes that the plaintiff’s daughter had taken while they were in emergency department. As he referenced each document, he would pull them out of a binder and stick them to the poster board with pushpins. Then he would refer to the poster board over and over again pointing out all of the “evidence” that was “plain to see” in responding to the plaintiff’s case.
Many times he talked about my testimony at trial. He had printed up all of these pieces of paper with the names of all the doctors on them. I saw that he had at least 4 or 5 pieces of paper with my name and different quotes on them in a neat little stack. As he referenced something that I said, he would pick up my quote, push another little pin through it, and stick it to the poster board.
After the hospital attorney had stuck a half dozen pieces of paper with my name on it to the poster board, out of the corner of my eye, I saw Vinny write something on a piece of paper and elbow Louise. I didn’t turn my head, but strained my eyes a little more so that I could read the words “He scares the hell out of me.” I looked up at Vinny’s face and he looked like he was deep into a hand of Texas Hold’em. I watched Louise write something in reply and push the pad out of my sight. Vinny read the note and quickly folded up the paper and put it in his pocket.
There go those butterflies again.
By the time the hospital attorney was done with his argument, there was a poster board with probably 20 or 30 pieces of paper stuck to it. I think it made quite an impression when he finally stated:
“The plaintiff’s attorney said there was no evidence of many things happening in this case…”
Then he walked over, put his arm on the poster board, and looked at it for a few seconds without saying anything. After the dramatic tension had built up, he looked back at the jury and said
“Well … I beg to differ.”
Then he took the board down and set it against the wall.
It was time for the Grinch to finish his closing argument.
You are KILLING me. How many parts will this end up having?
Tomorrow and Monday – that’s it.
Don’t know what I’ll do with all my extra free time after that …
In your state, has any physician had his or her personal assents successfully taken when an award exceeded the policy limits? Fortunately, it is not a common thing.
I’d be very surprised to see this happen to an emergency physician, since the hospital would generally be liable alongside them because the EP is their employee/agent. The hospital is undoubtedly a better target for judgment enforcement, one less likely to declare bankruptcy or claim everything is a marital asset.
Of course, such is not necessarily the case in “tort reform” states which got rid of joint and several liability — in those states, the hospital may be able to leave the EP holding the bag.
“Of course, such is not necessarily the case in “tort reform” states which got rid of joint and several liability — in those states, the hospital may be able to leave the EP holding the bag. ”
do you have any links/articles discussing this. it sounds interesting. from what you said it sounds like the reform favored hospitals and wasn’t so good to docs.
combined with this talk of 24 hour shifts and it seems like ER docs are taking it up the
PA passed one of these laws (a hybrid one that said only a party more than 60% responsible can be liable for the whole verdict), but it was declared unconstitutional for violating a legislative procedure rule.
Around the time it was being passed, this article popped up:
http://www.physiciansnews.com/cover/902.html
“The law’s practical impact may not be all positive for physician defendants, however, and may conceivably expose their personal assets to risk when a jury award exceeds their malpractice insurance coverage and plaintiff attorneys have nowhere else to turn for recovery.
* * *
Plaintiff attorneys have traditionally not gone after physicians’ personal assets in the past when recovery could be sought from the deeper pocket defendants in a malpractice case. “Now, to protect their clients for the full amount, they’re going to have to,” says Pennsylvania Trial Lawyers Association Legislative Counsel Mark Phenicie. “I think it’s inevitable that some physicians’ assets are going to be seized. Plaintiff attorneys would otherwise be guilty of malfeasance in working for their client’s recovery,” he adds.”
- – -
For reasons that are too detailed to go into, I don’t think EPs are at much risk even in that scenario, since the hospital can typically be held vicariously liable for their conduct. (Then again, I could be wrong.)
But for other physicians, including ED specialists and consulting physicians, it’s not nearly as clear.
what happens if the award is 10 million, insurance covers 2 million and the doc has .5 million in assets?
hospitals must have been very excited about this bill.
Quick question for you Max. Some OBs in New England I knew from medical school talked about dropping insurance coverage all together and then putting every asset they had in their wives names. Signs in the office said something to the effect of ‘we have no insurance or assets.’ Does this scheme actually hold up legally? It seems rather risky, and I don’t know that anyone actually tried such a plan for long .
Mike,
I expect that would hold up in my state. But you better make sure you can trust your wife!
Adam, a $10M judgment in excess of policy limits would almost surely result in an appeal, and typically a settlement down the line once the physicians true ability to pay was determined. Also, if the insurer had failed to offer policy limits, it might result in a bad faith claim by the defendant against the insurer.
MikeMD: They’d have to talk more specifically with a lawyer, particularly a bankruptcy lawyer, to answer that. You can get away with a lot in bankruptcy.
Yet, I’d imagine the costs and difficulty of maintaining such a system — note, for example, how they’d give up a lot of preferential tax treatment for things like their 401k / IRA — would outweigh the benefit. They’d be better off just buying more insurance (e.g., an “excess” policy), which generally gets cheaper as you get more of it.
Adam: In your example, the doctor would be bankrupt. In reality, plaintiffs typically take policy limits, even when they have verdicts well above that, because they’re given the choice of (1) take policy limits now and be done with it or (2) go through years and years of appeals (funded entirely by the bottomless coffers of the insurance company) and bankruptcy litigation (debtors’ bankruptcy lawyers get paid first out of the state) before you see a penny.
In NY, a plaintiff’s attorney successfully attached a physician defendant’s personal assets to the tune of $50K.
You are more likely to be divorced than to be sued for medical malpractice.
“You are more likely to be divorced than to be sued for medical malpractice.”
Really? I keep hearing doctors say that statistically, they get sued every five years or ten years or something like that. Don’t most marriages last longer than that?
Even if that stat were true, which is doubtful, it’s a long way from being named in a suit to a verdict in excess of policy limits. That’s a pretty rare occurence even factoring in those cases where the physician is drunk or high and gets hit with punitives.
Doctors may get sued every 5 years, but they win at every stage of the claim 80% of the time. The risk of having to pay involuntarily is infinitesmally small. The risk of divorce is 50% in this feminist infested legal climate where the open hunt is on for the productive male, with a bounty placed by the lawyer for family destruction. Why does the feminist lawyer seek to destroy the American family? It competes for authority with central government, a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession.
Nicely written, but I saw the cliffhanger coming today, so no cuss words from me today!
Do we seriously have to wait until next week?!!!!
Ack!
&^%$#&%$#*%$*^%*(&^%(^%(*&^(*^$*^%$(&%^)%
Another Cliffhanger!!!! Argggg!!! I can only imagine how insane you must have been going through it… Can’t wait for the next installment!!
WC,
was Louise known as Dr. Louise Andrew? She is quoted in these articles. She is a doctor/lawyer.
Do any of the docs here use a Family Limited Partnership?
http://en.wikipedia.org/wiki/Family_Living_Partnership
Have any of the lawyers here tried to get assets from a FLP?
Here is a story about a doc who killed himself over a frivolous lawsuit
(Matt, please point out there are two sides to every story here)
http://www.black-bile.com/resources/05-06%2B%2BDr.%2BTicktin%2Band%2Bthe%2BExpert%2BWitness%2BIndustry.doc
http://www.assetfoundation.com/ticktin.htm
One thing that surprised me in these articles:
His salary was $185,000 and his insurance was $40,000. Is that normal?!?! Holy crap!
No relation to Dr. Andrew.
All names have been changed to protect the innocent.
I picked Vinny’s name from “My Cousin Vinny”.
Louise’s name was actually a play on words using the attorney’s real last name.
Looks like someone is trying to sell some asset protection schemes and seminars based on this suicide.
Adam,
The 40k would be the cost of his annual premium, not his coverage. 1 million per occurence and 3 million aggregate is a pretty standard coverage.
Matt,
Can a physician never be harmed in any way from the legal process? Could it be possible? Or would it just kill you to actually acknowledge it?
over 20% of a docs salary goes to medmal? is that normal?! i find that shocking. i can’t even believe it.
is this a “normal” number for someone that hasn’t ever been sued, or for all docs?
why are these numbers not posted ANYWHERE?
docs always claim they are evidence based, and want numbers and studies and the like – I’ve yet to see any published numbers – just here-say from anonymous posters in various forums.
Absolutely Dirk. I’ve never contended otherwise. I think this story, if true, is tragic. Someone should have counseled this guy and helped him get some perspective on what he was facing.
“Someone should have counseled this guy and helped him get some perspective on what he was facing. ”
Matt,
you are an excellent flame baiter. I can already see peoples’ responses saying the problem is that this shouldn’t happen, not that he needed counseling. I imagine you enjoy arguing for the sake of arguing. This is an excellent forum to enrage a response out of someone – and you do a great job at it.
I still think you’re a doc posing as such an a-hole lawyer it will convince people the system is jacked up.
You’re a ninja.
Adam you give me more credit than I deserve. I meant that sincerely. Thousands of lawsuits, from small claims to Fortune 500 companies suing each other, are filed every day. Taking your life because you’re involved in one is totally and completely overreacting. Some perspective was sorely needed. Again, assuming this story is true.
The FLP is snake oil, unless it’s useless. The old rule is that, whatever you can get at, the creditor can get at. There’s no easy way around it. Use the bankruptcy protections or forget about it.
The story about the doctor doesn’t give much detail about what even happened in his case, other than him apparently retaliating against the opposing expert in the middle of the case.
I’d bet $100 the insurance attorney and his personal attorney told him not to do that. Unsurprisingly, a gross manipulation of the system in the middle of a supposedly frivolous case did not work out well for him.
Tragic, but not really evidence of anything other than there being people in the population with psychiatric concerns.
If a doctor wants to commit suicide, he should consider helping our country at the same time. His name will be enveloped in glory and gratitude by our land pirate besieged country.
You write such a vivid description of things, it’s like we are watching it vs reading it. The pins holding the papers, with your quotes on them, made me think of those old movies where the characters were supposed to be practicing voodoo/vodou.
This is a subject to discuss with the personal attorney, not the insurance attorney. Should you file cross claims against all other defendants? So none could betray clinical care by settling. Could you make the hospital pay for their betrayal by making them pay you $1 million to allow them out of your cross claim. That $250K rewarded a weak or even frivolous case, and will encourage many land pirates to return against the defendants. They know they can make an easy $250K without evidence.
The opposite is proper. The plaintiff, the plaintiff lawyer, the plaintiff experts should face personal destruction with endless ethics complaints, using one utterance at a time, sent to one licensing authority at a time, one a month, into the foreseeable future. Then move for total e-discovery of each, and put all their stuff on the web for others to use in the future to disqualify, to impeach. Then countersue after the case is over, to get made whole for their careless and the damage it has caused the defendant. I would like to sue the judge for failing to dismiss the weak case. No lawyer will do that. I would do it pro se, without filing a frivolous claim, to change and improve antiquated law granting the cult criminal on the bench unlawful and unjust self dealt immunity.
When you prevent settlements, when you orchestrate the personal destruction of the enemies of clinical care, you deter. They do not come back. They go into another specialty. They leave the state. Such defense of clinical care should become a standard legal duty of all innocent defendants. It is certainly a moral, intellectual duty right now.
sounds like that guy tried to do this – and it didn’t work out too well for him.
As people get upset by being sued, the lawyer is doubly upset. You can never win against a lawyer, because the legal system is rigged airtight and totally immunizes the land pirate. However, they are bullies. Any pushback deters them well. Long lines of successful lawsuits can be ended with just one instance of pushing back. It is an investment. Plaintiffs will tell you, after such an episode, they could not find a lawyer to take a similar case within 200 miles. Not only does the plaintiff lawyer learn from just a little legal punch in the nose, all the plaintiff lawyers of a wide area learn. It works, and is definitely worth the effort.
Supremacy Claus, how many times have you sued judges for failing to dismiss “weak” cases? As you are aware, you don’t have to be a lawyer to do this; you can proceed pro se. What were the outcomes of these suits?
How many times have you “orchestrated the destruction” of a lawyer, as you constantly recommend so enthusiastically? Certainly filing a monthly ethics complaint would be child’s play for one so legally sophisticated as you.
Can you point to a reported case where a judge has ordered or permitted the “total e-discovery” of a lawyer’s personal life, going back to kindergarten, to uncover suspected improper motives for filing suit? How many cases can you cite that were dismissed, not due to any legal or evidentiary deficiency, but rather due solely to improper motive on the part of the attorney?
Can you refer us to the memoirs of one of those terrorist personal attorneys who conduct all this legal destruction you admire so much? Someone who has driven all the plaintiffs’ lawyers out of practice for miles around and intimidated the defense lawyers into filing legally baseless motions and unethical discovery demands? Can you even name one?
Does any of this stuff actually occur outside your disordered imagination?
There is no real asset protection. You can pay high fees to a Third World bank to hide your assets. When they steal them, what are you going to do, call the local police? The sole defense against the plunder of all productive parties in the US by the land pirate is to counter attack. Terrorize the land pirate. If the latter can be excluded from government, and government retrieved from this criminal enterprise, then control measures can start. These should include the execution of the hierarchy of this criminal cult enterprise for its insurrection against the Constitution.
For those shocked by the malpractice premiums, 40K for a doctor making 185K is not unusual. They are specialty-based (amongst other things). In NY State, trauma surgeons and ob/gyns pay upwards of 300K in premiums.
According to who? How many physicians pay that much in premiums?
no wonder they won’t do breech anymore.
where do you get these numbers?
from:
http://www.nysun.com/new-york/rising-insurance-rates-put-city-doctors-out/57934/
$190,000 for a obgyn
$42,916 for avg NYC doc
$267,000 for brain surgeon
I find a bunch of law web sites saying medmal insurnace really isn’t a big deal (of course they’d say this).
Other than that, nada. And of course, ask the question on a doc web site and the silence is deafening.
If they are so high and it is such an issue docs sure do a crappy job of telling people about it – other than “it is awful” or “it is a lot”.
Adam, you should probably give up on finding raw numbers. The insurers aren’t going to release them, and it won’t do you much good without a reference to income. And the physicians aren’t going to release those. You might find some income information on the Dept. of Labor’s site, but I don’t know if it’s broken down state by state.