During my malpractice lawsuit, I kept notes on my computer and wrote notes on scraps of paper, telling myself some day that I would write a book about my experiences. As life goes on, priorities change and the notes just got put into a file for several years.
An article I read about another doctor who had difficulty coping with a malpractice trial finally motivated me to pull the notes out of storage and begin writing. My intent was to generate discussion about what doctors go through during a trial and I undoubtedly succeeded. When doctors are sued, many times they don’t know what to feel. My experiences are the way one doctor felt. Hopefully the story will give others the impetus to discuss their experiences. Through my eyes, hopefully everyone can see some of the major flaws in our system and the need for change. I realize that patients have their own view of what happens during malpractice proceedings and this story is not intended to diminish the ordeal that patients go through. Like I said when I started writing this series – malpractice trials aren’t about who wins, they’re about who loses least.
I’ve read comments and have been sent e-mails asking me about the case.
Is the story real or am I some John Grisham/Samuel Clemens reincarnate? Scary that I’m being mentioned in the same sentence with writers like that. The story is definitely real. My writing is what it is. I try to write like I talk to people. I appreciate it immensely that so many people enjoy it. I don’t think I’m creative enough to make up story lines out of thin air, although admittedly I’ve never tried. Maybe in all my future free time, I’ll give it a shot.
Why was I dragging out the posts? Was it a ploy to boost hits to the EP Monthly site? Sure I enjoyed the increase in readers. Daily hits to the site more than doubled since I started the series. That’s not why I posted so many parts to the story, though. The entire series ended up being over 30,000 words. Much of it I had to transcribe from written notes, which is no small task. Sometimes I felt like putting it off, but stayed motivated by everyone’s comments. I tried to do the story in 1000-2000 word chunks because those are easiest to read and because they were manageable in terms of transcription. Don’t forget, I still have two jobs and a family to spend time with.
What really happened to the patient? I doubt I’ll ever disclose the exact issues in the case. The facts about the patient and his or her condition were changed. The patient’s condition was uncommon enough that if I disclosed the condition, it is possible that someone adept at internet research would be able to figure out who the patient and his family were. If the story doesn’t fit together perfectly, that’s the reason.
The central elements in the malpractice case were not changed. The events happened several years ago, so I don’t have an independent recollection of everything that happened. I took notes, but there were some gaps, so I filled things in as best I could from my memory. One example of me filling in gaps was the time between leaving the court after the jury began deliberations and the time the verdict was read. Not sure whether I took notes and the paper was lost or if I just never took the notes. I remembered the talks we had, Louise pumping her fist at the table, and Vinny saying that it only took 45 minutes for some company to lose millions of dollars – I think he said AIG, but I couldn’t remember. I did some searching on the internet and still couldn’t find the answer, so I made it AIG.
Couldn’t remember everything, but I did the best that I could to make the story complete.
What was up with Louise? I’m not sure. I could tell that she had a lot of other personal issues going on outside of the courtroom. She frequently seemed to be on edge – and her pen paid the price for it. I assumed that she was a single mom because she talked about child care a lot. I never came out and asked her because it wasn’t any of my business. Just like every other profession, sometimes personal lives carry over into professional lives.
No, there were no romantic trysts – at least as far as I was aware.
There were several parts of this story that I left out. I took pictures of a few things with my cell phone. I doodled pictures of the jurors while they were being asked questions during voir dire (Louise yelled at me for doing so). There were several interactions with Vinny that I left out because they seemed to drag on (even more than the story already did). If I write a book, I’ll probably include these other snippets.
I had actually planned to file a countersuit against the Grinch and his expert. One of my best friends and someone who I deeply respect is a medical malpractice plaintiff’s attorney. I never told him about my malpractice case until after it was over. Then I told him about what had happened and how I planned to sue the plaintiff’s attorney. It turns out that he was close friends with the Grinch. He told me that the Grinch was a good person who did a lot to help families and the community. I thought about it for a while and decided to move on with my life.
What did I learn? Lawsuits are stressful. I didn’t change my practice much other than to document things a little more thoroughly. That slows me down a little, but ends up being a necessary part of emergency medicine.
If you have other questions, post them below and I’ll try to answer them.
Thanks for all the great comments and for the interest.
Writing this story has been a great experience.
Now I have to figure out other interesting things to post about in the future.
thanks for a great series. i was wondering what the timeline was- how long did this whole ordeal take?
when did you see the patient? when did you find out you were being sued? when was the verdict reached?
Suit was filed just under 2 years from when I saw the patient.
Found out about 4 months after that.
Filing to verdict took about 4.5 years.
Ugh! Do out of the blue..TWO *years*later..you were hit with the lawsuit?
Do they always take that long?
How can a doctor ever feel secure.
That must be an awful feeling to know that someone could sue you at anytime. Double Ugh!
I guess you learn to live with it.
Do the book.
What’s the statute of limitations where you are? We’re 2 years in general (peds ED), but as a pediatrician who still attends deliveries, it extends to 18 years liability. The OBs are 21 years I think.
In any case, congratulations. I’ve learned a lot reading about your trial so thank you for taking the time to relate your experiences.
Two years is actually one of the shorter statute of limitations in law. Contract disputes in my states are up to 5 years, regular negligence claims (car wrecks, slip and falls) 3 years, and fraud claims 3 years, among others.
“That must be an awful feeling to know that someone could sue you at anytime. ”
Someone could sue YOU at any time SeaSpray. There could be someone getting ready to walk into a small claims court tomorrow and sue you because they didn’t like the way you looked at them. They don’t necessarily have to even be sane for the suit to be FILED. The clerk doesn’t have the discretion to reject them if the i’s are dotted and t’s crossed.
WC, congratulations on a story well-told and for the favorable outcome. I suppose there are no real winners here other than the lawyers. You lost time and income, the plaintiffs lost a loved one, immensely stressful for both parties. It was a lot of wailing and gnashing of teeth for no real change in the course of life. As SC says and as Matt will deny, the whole thing appeared set up to extract legal fees for the lawyers.
So, a serious question: Who will play you and the other participants in the movie version? You already have a great title.
I’m thinking that you would be played by Russell Crowe, the “A Beautiful Mind” Crowe, not the “Gladiator” Crowe. Whaddaya think?
” the whole thing appeared set up to extract legal fees for the lawyers.”
That doesn’t make much sense. Particularly since the plaintiff’s lawyer likely lost tens of thousands in out of pocket costs and at least as much in uncompensated time.
Perhaps if you have the great misfortune to be or have someone close to you injured by the negligence of another, you’ll have a better understanding of the whole point of a trial. I hope not, though, for your sake.
thanks for posting this series. It was a fascinating insight on a really flawed system. I’m pleased that you came out on top, and deeply troubled that it’s so easy to pursue such a ludicrous case.
Thanks for putting the time and effort into re-creating this ordeal for us. As someone who played with the idea to sue for malpractice (too many mitigating factors made it impossible in spite of the [what we felt] was inadequate care of our daughter) it gave me a wonderful insight into what we would have put the docs through.
Thanks again and don’t worry, you’ll come up with something to write and we’ll still be here to read it!
Thank you, WC. I looked forward to each post in the series, savoring them over my morning coffee.
I appreciate the story and the emtional roller coaster you put your family on.
As a fledgling MS4 I wonder how it has affected the way that you practice. Do you believe it led you to practice more defensively?
Is there anything you wish you did/do differently in your professional personality due to this (i.e. the way you interact with families of patients and such).
I often try to joke around with patients and families – I did so before this case ever came about.
Defensive medicine – probably increased the frequency with which I order low yield testing somewhat, but not a lot.
Do continue to document a whole lot better. Documentation was a big issue that I couldn’t really go into as much in the story but that also played a huge part in the trial.
Question: what would have been your reasoning behind suing the plaintiff’s attorney and their expert?
I don’t ask to get into a debate about it. As I understand it, though, as a matter of the facts, the attorney had ample probable cause for the lawsuit, not least due to suggestions of blood on the abdomen. You obviously vigorously dispute that, but the attorney has no way of knowing if your records or the EMT’s records were right.
As a matter of the law, their expert did not appear qualified to my eye, but the court did in fact admit the expert’s testimony, so, again, the lawyer had probable cause to believe they were presenting a valid case.
Max is correct. The tort reform of requiring a certificate of merit has become an absolute shield to lawyer liability to the adverse third party. The lawyer can now say, I know no medicine. This expert said the case had merit. Anyone with $500 can get one of those.
I would like to see a statute pass ending the self-dealt, and unfair privity obstacle to a legal malpractice claim by the adverse third party. To deter.
It is legal malpractice to file a weak claim, not a frivolous claims (with no basis in law nor in fact), but a weak case, one more than 51% likely to fail. If a lawyer has a failure rate of 51% in medmal, that should be a rebuttable presumption of legal malpractice against the class of all his defendant doctor victims of weak lawsuits.
It is legal malpractice to use an expert outside the specialty of the defendant doctor.
There are dozens of duties of the lawyer to the adverse third party in the statutes covering the Rules of Conduct, of Evidence, of Civil and Criminal Procedures. The violation of any of these makes the legal malpractice per se. That means one need only prove it happened, and the malpractice charge is automatic.
This self-dealt immunity is unfair. It hurts the legal profession by not ending the filing of expensive and time wasting weak cases. This is where the interest of doctor defendants and plaintiff lawyers are the same. If weak cases ended, it is the defense lawyer that would lose his job.
Contrast the opposite in the criminal law. The prosecution plea deals 97% of cases, and wins 80% of trials. That means only 1% of cases are weak, despite the handicaps, inexperience, poor funding, higher burdens of proof, and inexperience of young prosecutors, of the criminal prosecution. That is the plaintiff lawyer standard of due care.
I did a lot of research on causes of action against the attorney when the trial was completed.
I had planned to file malicious prosecution claim against the attorney and a negligent hiring claim against the law firm for retaining the expert. I also planned to file a negligent misrepresentation claim against the expert. Also considered a bad faith action against the expert for his opinions.
You would have run into the litigation privilege.
If the statute of limitation has not passed, you should still consider it. Just take $50,000 you do not need, and don’t cry when you lose. It is a great investment however.
If organized medicine were not such punkasses, they would join you, and make it a class action against all plaintiff lawyers. Tie them up for 7 years. See how they like it.
Get on TV and talk about how these vicious predators ruined your life. I believe the 80% failure rate is itself an intentional tort of legal malpractice on purpose to play the lawsuit lotto, and to extort settlements from innocent defendants. It is intentional because they have scienter from the decades of experience of losing cases. If that is proven, then exemplary damages apply. To deter. Let us know if you decide to do that.
I wonder if your original expert’s opinion that you were negligent would have been discoverable had you filed a “malicious prosecution” claim as well as your “negligent misrepresentation/bad faith” claim against the plaintiff’s attorney? Not sure why you thought you had a chance given that original opinion by the expert paid for by YOUR insurer.
I doubt you had standing to bring a “negligent hiring” claim.
I’ve got to agree with Max. The other attorney hadn’t done anything to deserve a lawsuit. It would be rather hypocritical had Whitecoat done it.
WC hadn’t done anything to deserve a lawsuit. The lawyer can sue everybody. Nobody can sue the lawyer despite the tremendous damage done by the lawyer.
Wow, Whitecoat, I’m sure it must have taken just about as much out of you to write and relive that as it did to go through it in the first place! Thanks for all the effort — I have been fascinated by the story.
I’m glad the verdict went your way and I’m sorry you had to go through all that. I’m not being disloyal, though, when I say I also feel for the plaintiffs. They lost someone dear to them and it’s natural to want to place blame. If being angry helps them, I’m sorry they don’t have a place to put that anger.
*I* felt for the plaintiffs.
It is an unfortunate aspect of our society that many people are so quick to inappropriately place blame somewhere.
Sometimes people ask me if I get depressed when I can’t save people. The point I make is that I take patients as I get them and try to make them better. Because I can’t cheat the Grim Reaper doesn’t make me a bad doctor, it makes me a human being who tried my best. Some people’s diseases have progressed too far.
Being blamed for things beyond one’s control is frustrating.
It would have been a good investment to have filed an abuse of process suit against the plaintiff attorney. I guarantee you would have lost. You would have needed a recording or an admission showing he filed his lawsuit knowing it was frivolous, and that is was not to compensate his client, but to harass you. Your being a stranger to him totally rebuts the harassment charge.
But. You still should have. 1) It may have driven him out of the medmal business, out of the state, out of his mind; 2) it would insure almost no other lawyer would be crazy enough to sue you knowing you will spend the money to countersue.
The expert is legally immune for his testimony. The sole recourse would be inside the trial, and your insurance lawyers failed to really counterattack, because they wanted a trial to break even. For example, his opinion is immunized by the First Amendment and by Supreme Court decision. However, his misstatement of any fact is perjury. He should have been disqualified, failing that impeached, and his testimony stricken. Failing that, his testimony should have been parsed, as in every word, for a statement of false fact. That is perjury, and a motion to arrest him for perjury and criminal contempt could have been made.
To my knowledge, there is no statute of limitations on reporting unprofessional conduct to a licensing board. You should still go through the record, and list all unprofessional conduct. For example, testifying outside one’s specialty is unprofessional. Every dubious utterance and item in any resume or report. Then one at a time, once a month, send in the item to one of his licensing boards. Each generates an investigation and a visit by an investigator, and a review of records, by law. So, your list has six items. He is licensed in 3 states. That means 18 investigations, staggered monthly. I bet he never testifies again, even after he is totally cleared by the licensing boards. No one can sustain that kind of pressure,time, hiring of a administrative law lawyer, and disruption for the fee he got. As long as these complaints are kept totally confidential, in most states, they are legally immune. Indeed, there is a physician duty to report unprofessional conduct by other doctors.
All litigators are charming and likable. So, the fact the plaintiff lawyer is a nice guy should have no influence on your decision to hold him accountable. I have no doubt, he thought you were a nice person. This is business.
I appreciate the effort it took to organzie your story for publication. 30,000 words is a lot. FYI, the average romance novel has about 65,000 words, so keep that in mind if you are looking to turn this into a book…I have no idea what the word count is on the average non-fiction book. There are some good calculators out there if you go in that direction.
I have read White Coat Rants as well as your current blog. I don’t believe you’ll have any trouble coming up with new things to write about.
Again, thanks for sharing this story. I don’t think most people have a clear idea what happens in a malpractice trial.
I sill kind of wish The Grinch had gone up in flames at the reading of the verdicts…
The only thing annoying about this series is that I don’t know what the diagnosis was. I want to know when I need to call the surgeon the MOMENT the patient arrives in the ER before any evaluation has taken place.
The family gave up its confidentiality privilege when it sued. If the real case is found, WC would lose privacy. Out of respect, I am not going to try.
Fun and stimulating blog. Congratulations.
I find it a little ironic that doctors are held to a much stricter degree of perfection that lawyers are. 50% of the lawyers fail to win their cases. Surely both sides can’t be right, so one of them is not practicing law to the same degree of rectitude as the other. If doctors had a 50% rate of doing the right thing, imagine the lawsuits!
In the criminal law, the plea bargain rate is 97%, and the verdicts at trial are guilty, in 80% of cases. That is comparable to the success rates of medicine. The criminal prosecution is done by young people out of law school, paid very little, carrying dozens of cases, with a burden of proof of beyond a reasonable doubt (80% certainty, not 51% certainty as in medmal). They have multiple elements to each crime. They must prove it took place, and that each was intentional. So lawyers have the ability to work at high standards, even inexperienced young recent grads.
The torts system is a scam to plunder all productive entities. If a medical group has 4 lawsuits, it screams. A business with the same gross income will have 400 lawsuits all the time, forever. The majority are by greedy, seedy, plaintiffs, real low life parasites. The blame others for their carelessness and demand to be paid to return to their addictions, criminality, and general seediness, subsidized by the rest of us.
Every penny spent on this case came from the public, and the care of other patients. The doctor is a pipeline from the wallets of working people to the wallets of high living plaintiff lawyers. All costs are passed on. That is why WC can be so cheery. He put out no money. However he did lose time and work opportunities. The lawyer predator does not care about anything but his own enrichment.
That misunderstands the purpose of civil litigation. The purpose is to resolve disputes.
In every case, at least some of the law and the facts are disputed, so lawyers, who have training and experience in researching and advocating with regard to disputed law and facts, are hired to assist.
Why don’t you compare trial lawyers to neurosurgeons, oncologists, and trauma surgeons? All of them “fail” to bring their patients back to perfect health more often than lawyers “fail to win their cases.”
Indeed, under your analysis, we can say that WhiteCoat clearly “failed” the patient, since the patient died. Thankfully, he was not held to the “stricter degree of perfection” you have imagined, he was held to the standard of care, just like every profession, including lawyers.
“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
Abraham Lincoln
He was a railroad defense lawyer; “discourage litigation” to him meant convincing the defendant to settle reasonable claims. Hence the “there will still be business enough:” he was talking about the incentive defense lawyers have not to settle cases because it meant cutting off their own revenue. (Plaintiff’s attorneys, in contrast, have an incentive to settle, and so have no need for this advice.)
He meant the exact opposite of what you likely thought that quote meant.
“The purpose of civil litigation is to resolve disputes”
To resolve *factual* disputes. Issues of law are supposed to be decided by the judge.
The problem is that medical malpractice cases often do not hinge on factual disputes, they hinge on opinions that cannot be proven.
Big difference between determining whether a light was red or not and determining whether two hours would have made the difference between life or death.
Whomever is more persuasive in advancing their opinion has the upper hand in litigation – even if that opinion does not reflect appropriate medical practice.
“The problem is that medical malpractice cases often do not hinge on factual disputes, they hinge on opinions that cannot be proven.”
That is true for any litigation of any complexity. When two planes brought down two towers as part of one plan, was that a single event or two events under the WTC insurance policy? At what point does an investor with inside knowledge have a duty not to act on it and a duty to preserve information about what they did? When is a high ranking government official responsible for abuses that occurred under their watch?
Your argument is that medical malpractice alone — apart from, e.g., patent infringement, antitrust, constitutional violations, power plant failures, and stock option backdating — is so complicated that it cannot be practiced in a reasonable and consistent manner. It is so complicated that it cannot be boiled down to standards and reviewed after the fact.
I don’t agree and I doubt you do, either. You know that a standard of care exists and you generally know when it has been met or breached. The fact that there’s some uncertainty to the legal evaluation is not enough to warrant throwing our hands up in the air and claiming it’s impossible. You deal with uncertainty every day in every aspect of your life, including medicine. There’s no good reason to hold law to a standard of infallibility that nothing else meets.
There is a difference, though.
All of the examples you cited require that a “judgment call” be made on a factual issue.
WTC issue had insurance policies with specific language about what was and was not covered. Factual determination depends upon insurance policy language. Ambiguous provisions go against the entity drafting the policy.
I’m not into trading laws, but believe that insider trading is a fairly clear cut line on using information before it becomes public knowledge.
Don’t know much about duties in the hierarchy of the military, either, but I’m sure that those duties are clearly spelled out or that at least the intent is there. Responsibility is then a question of whether the situation met the duties.
Patent infringement is a judgment call based on a factual question – how much does product A resemble product B?
Contrast those examples with medical cases.
The patient I saw was sick. How does one define “sick”? There is no definition. Does presence or absence of a WBC count affect the definition? No one can say with any degree of certainty. There was a definition of sepsis that was proposed, but it was the wrong definition. Even the criteria for that definition are not clear cut. If patients only meet 4 criteria instead of 5, does that mean they cannot be septic?
The patient in my case died. Would he have died if he was evaluated two hours earlier? Where’s the black line between the time the patient was “salvageable” and “not salvageable”?
I think in many cases that the medical “standard of care” is a legal fiction. There has to be a consensus to be a standard. Without a consensus, no standard should exist. That’s a topic for another post.
And I’m not saying the system is impossible, only that it needs an overhaul to make it more fair to both injured patients and physicians.
You wrote, “Patent infringement is a judgment call based on a factual question – how much does product A resemble product B?”
Yet, “If patients only meet 4 criteria instead of 5, does that mean they cannot be septic?” is not a judgment call based on a factual question?
Life is complicated and uncertain. The standard of care is based on the consensus.
Most states have already overhauled the system to get rid of precisely your situation, in which an unqualified expert vaguely speculated about a deviation. It’s hard to think of what much more to do without making things increasingly unfair to patients, as ever tort reform proposal inevitably does. You yourself have recommended total immunity, an outrageously unfair system.
The standard of due care is a fiction. The lawyers just made it up. It is not a fact in nature. The exception are the standards that are within the knowledge of the jury. They know that wrong site surgery is wrongful, or giving blood to the wrong name, and death follows in two minutes. Those are the only cases that are within the subject matter jurisdiction of the court.
I never recommended “total immunity” – don’t misrepresent my suggestions. I have recommended a higher bar for liability in patients who receive EMTALA mandated care as a way to encourage more physicians to provide such care.
Standard of care is NOT based on the consensus. If it were, each side could call as many witnesses as it wanted to show a consensus. As it stands now, if one expert believes the standard was breached and 99 believe that it was met, the jury will only see one expert testify on each side. Other experts will be excluded based on “cumulativeness.” Explain how that scenario demonstrates a “consensus.”
in the legal system now standard of care is what a 12 person lay people decide.
It was a well written series. You have an evil sense of timing as to when to break off the story until the next post.
Technical note: The link in the post above, to the story about the other doc, doesn’t work (for me, anyway). It goes to a blank epmonthly page.
Best wishes,
Eric
Corrected the link. Thanks
What an excellent job you did on this whole series! I learned a lot. Don’t worry about any posts that follow. You are an enjoyable read, what ever you decide to blog on. If you do find time though…you really should try your hand at writing other stories. You have a great way of painting a picture with words. From now on, every time I see a chewed up pen -I’ll think of Louise.
If I write a book, you’ll get one of the first personally signed copies.
Fantastic series, WhiteCoat. I’d really appreciate it if you would elaborate a little more on how you coped with the stress of the lawsuit, seeing how it stretched out for years. Did you mostly forget about it in the intervening interval, or was it really hard on you?
During times when the lawyers were deposing other parties and doing all of their “discovery”, I didn’t think as much about the case, although seeing lawyer programs on TV would seem to conjure up thoughts of what would happen if my case went to trial. Kind of had a chronic sour taste in my mouth that got stronger when I got status reports from the attorney or letters from the insurer.
Once it was determined that the case actually would go to trial, at times I became engulfed by the whole process. Started worrying – how are we going to show this or what if we can’t show that?
Definitely stressful and I am so thankful for all the support from my wife and kids. Probably the thing that helped me through litigation the most was having support there.
I still would’ve sued that SOB
All in all, WC, your story was both realistic and illuminating. I look forward to reading your book, when and if you decide to take the next step.
I have one further question: How long did the process take from incident to verdict?
About 6.5 years total.
Seemed like more.
Well done. Thank you.
Again WC thanks for the insight as to what it is like. Being as I am a medical student now and want to specialize in EM I can only pray that I never get sued knowing I probably will one day.
Very well done WC.. very well done. If you don’t mind my asking, do you know what the final cost in dollars was to you? The lawyers cost for defending you?
Unfortunately I have had the mispleasure testify about a patient I treated (fortunately I was not sued – it was a criminal case), and I know how unpleasant it is to be berated, told you don’t know what you are doing, having to prove beyond a doubt that you were licensed and qualified.. etc for 4 hours on the witnness stand. I cringe at the thought of having to live that feeling for 4 + years. Kudos to you for coming through it well. And they wonder why there is some animosity towards attorneys? That’s your reason for nearly everyone in the medical field everyone disliking attorney’s Matt… it’s not personal.. it’s business.
I agree with ERP as well though, I’d like to know the diagnosis so I know when to call the surgeon on a patient without waiting on labs, etc to come back. Maybe we could call it “White Coat Consult?”
I can see it now… “Dr. Jones, I have a white coat consult for you. No I don’t have labs or scan results back yet, you should know that, it’s a white coat consult! Now get in here and see the patient!!”.. like we could get away with that one at all.. hehehehe I can only imagine the response I would get.. I don’t think they would allow me to publish that here…
“That’s your reason for nearly everyone in the medical field everyone disliking attorney’s Matt… it’s not personal.. it’s business.”
Last year I represented a woman who had a tubal ligation performed on her without her consent by a physician. It was not mentioned in the records, and the only reason she ever found out was because the conscience of one of the nurses finally got the best of her months after the surgery. The records were then subsequently “amended” to add the tubal AND conveniently describe an emergency to justify it.
Now, I could take your approach and take that to mean all physicians are arrogant scumbags who believe in their innate ability to decide who should and should not reproduce.
But that seems a silly way to live, to like or dislike all people based solely on the actions of one who shares the same job. You may be a fine person and the actions of that physician would not determine whether I like you or dislike you. Particularly in your case, when you have no idea if the cases these attorneys are pursuing are legitimate or not and really know nothing about them.
Incidentally, I’m not sure why you would dislike ANYONE who says they are an attorney regardless. If I was a probate attorney who has never even sniffed a courtroom, what would I have done to you?
I understand that there are people who are irrational like that, and maybe you’re one of them. It just seems kind of silly though.
Daniel,
You will get sued. Accepting that now will make it easier when it happens. My residency class from 7 years ago was often declared the best the program ever had. We scored in the top 5% in the in service exam. All 12 of us have already been sued, most more than once, and 2 of us have been to trial with outcomes like WC. I love EM, but if I could I would leave medicine.
The real problems with medical malpractice seem to be the “experts”. Once you accept the expert then it is easy to imagine that a plaintiff, a plaintiff’s lawyer, a judge, and a jury can be persuaded that malpractice occurred. Even the defendant’s lawyer lacks the expertise to be sure the defendant did not commit malpractice. Somehow only the defendant seems to know that the “expert” testifying against him is misleading everyone with an opinion not justified by the facts. Good documentation may help a defense expert see that this is true and therefore be of some help. I think that to the jury, judge, and lawyers this might be mistaken as honest disagreements between qualified experts. I find it harder to blame the lawyers who probably don’t know any better and could even be well intentioned while persuing baseless lawsuits. But, what can we do about that to make the system better and still protect patients from actual malpractice?
Loser pays would create a tremendous incentive for lawyers to learn as much as possible about the case before pursuing a baseless lawsuit.
Having an expert panel appointed by a court, with attorneys from either side able to exclude experts via voir dire would be another excellent way to assure that opinions were honest and not biased.
Requiring experts to list complete bases, along with references, for each opinion they make prior to depositions would quickly cut through the BS.
These are just a few ideas off the top of my head.
We have a partial loser-pays system in my state, and I have obtained judgments of $25,000-$35,000 for trial costs and attorneys’ fees. However, these judgments are almost invariably worthless, because the great majority of losing plaintiffs are uncollectable, having always subsisted on welfare, disability, handouts from relatives or the kindness of strangers. In death cases, the decedent’s estates have no assets. Such people are undeterred by loser-pays.
When early discovery reveals a plaintiff with a steady job, stable family/residence, and no history of substance abuse, criminal convictions or psychiatric hospitalization, it generates considerable discussion among the defense lawyers, because it is so rare, and because it might mean that the plaintiff actually has some skin in the game.
I’d be fine with two-way loser pays, as it would give the insurance companies more skin in the game and discourage frivolous discovery and discovery objections. Right now they hold the money, earning as much return as possible, until the moment before trial. Even delay damages aren’t enough to move them.
Expert panel isn’t feasible, because most doctors are openly biased against plaintiffs, and almost none give opinions against other physicians with whom they have any connection at all. E.g., it’s largely impossible to find an expert in a given state to testify against a doctor in the same state.
Experts here in PA aren’t deposed, but they do have to list the bases for their opinions in the report, and are precluded from testifying on issues outside the report. It’s not a bad way of doing it, and it’s how we’ve done it for years, but, nonetheless, PA is generally rated by tort reformers as being a hellhole. Thus, it doesn’t seem to solve the “problem” tort reformers find with the system.
Fact is, the system largely worked in your case; indeed, in a number of states with modest tort reform (not the radical reform proposed by tort reformers), your case would not have even gone to trial. Yet, there’s a “crisis.”
Yes, Max, I’m sure you would be fine with two-way loser-pays, because in practice it works only against defendants.
If the defense wins and moves for costs, the court awards the $130 per hour insurance company rate for the time “reasonably necessary” to conduct the trial; if the defense attorney did more than the judge thought was necessary, those fees will be deducted. Judgment enters for this modest five-figure amount and the plaintiff doesn’t pay it, pleading poverty.
If plaintiff wins, her counsel moves for fees of $600-$800 per hour for an enormous total number of hours that he usually just makes up, as plaintiffs’ attorneys do not routinely keep track of their hours. The judge will reduce the total hours by 10% or so, award an hourly rate of $400-$600, and enter judgment for the resulting six-figure total. The insurance company, having the ability to pay, has to satisfy the full amount unless they can negotiate a settlement for a lower figure.
So about the only time the loser actually pays is if the loser is the defendant, and the amount is a lot more than the plaintiff would ever be ordered to pay if their positions were reversed.
The plaintiff’s lawyer’s fees are much higher for reasons you of course know, largely the extraordinary risk undertaken every time they represent a client that they will recover nothing at all. As you also know, plaintiff’s fee requests are usually slashed just as vigorously as anyone else’s.
Other than that, you’re right: it’s totally unfair that an insurance company has to strategize the litigation while laboring under the crushing burden of a huge pile of money, unlike the plaintiff, who is relieved of such a heavy burden and, indeed, has often been relieved of much of their income due to the injuries (or death) they sustained.
Stop kidding yourself. Insurance companies and their lawyers routinely exploit the desperate need of many plaintiffs — who you say are essentially destitute, hence being judgment-proof — for compensation just to get by, which is why the insurers drag things out as long as possible, extracting maximum pain from the plaintiff in the hopes they’ll eventually cave for less than the true value of the claim.
Wait, so an hour of your professional effort is worth six times as much as mine because you take cases on contingency and thus may not make a profit on every case? Apparently that justification for inflated fees hasn’t made it to this part of the country yet, as I’ve never heard anyone advance such an argument, and I must admit the logic of it completely eludes me. And it must not apply to you, as I seem to recall your telling Supremacy in an earlier thread that your success rate with malpractice cases was 100%.
As to the “poor plaintiff has to settle for pennies on the dollar because the evil insurance company starved them out” scenario, I haven’t seen that happen much either. Most plaintiffs continue to exist during litigation on the same welfare, disability, comp, or other non-work-generated income they had pre-suit. As mentioned above, we just don’t see many gainfully-employed plaintiffs suddenly disabled from work by medical malpractice. Plaintiffs’ counsel file for at least as many adjournments, extensions and delays as defense counsel, if not more, so presumably their clients are not perishing in the streets awaiting the settlement or verdict.
Your response doesn’t really address my point — that only defendants really pay under loser-pays — other than to imply that that’s exactly how it should work.
AJ, I don’t know if his hourly rate is that much higher than yours were you both to be paid in the same manner and take the same risk, but you don’t assume the risk the plaintiff’s attorney does. Your time is compensated win or lose. You don’t pay the out of pocket expenses. The concept of larger risk/larger reward is not unique.
As for loser pays, you’re absolutely right. Most states already have it, and most of the time the plaintiff can’t afford it regardless. Which is why the oft cited claim that it would slow down personal injury suits doesn’t make sense.
One interesting thing about WC’s case is that even when the defendant, in this case WC, had his own expert tell him that he was negligent, he kept shopping for a different opinion.
It would seem that the defendant’s have the advantage over the plaintiffs in this situation, since if an expert tells a plaintiff he does not have a case, then the plaintiff likely lacks the knowledge to reframe his position and find a new expert who agrees with him, like the defendant physician does.
What prevents a plaintiffs attorney from seeking multiple expert opinions until he finds one he likes?
In most (all?) cases it is the attorney -not- the plaintiff (injured party) interacting with the experts.
The difference between trial lawyers vs neurosurgeons, oncologists, and trauma surgeons is that the trial lawyers have several years to ponder the facts, consult experts, and either settle or go to trial. The neurosurgeons, oncologists, and trauma surgeons have minutes to make the correct decisions. There is little or no time to ponder.
An oncologist has “minutes to make the correct decision?”
It may not be minutes but it can literally be a matter of days or weeks.
Max: Stop parsing for a minute. Try being human for a change of pace. You might like it.
Max,
An oncologist can absolutely be forced to make life or decisions within minutes, and they often do. That cancer patient with altered mental status? Does he have early neutropenic sepsis, cytokine storm, medication toxicity from the dozens of medications he is taking, an acute myocardial infarction, pulmonary embolism given his increased coaguability, a stroke, anaphylaxis from medication, cns metastasis with herniation, airway compromise secondary to metastatic disease compressing the trachea, a dysrrythmia, a ruptured appendex, and I could go on and on.
Cancer patients are incredibly fragile with multiple coomorbidities and can crash in an instant.
Your knowledge of the complexity of medicine is very poor and embarrassing, and your assumption that you can look back on a case a say “of course its obviously a pulmonary embolism” is foolish in the extreme.
docs get to spend 60 seconds making a decision, lawyers get to spend 6 years proving it was wrong.
Find me one case where an oncologist was held liable for a patient who, in a matter of minutes, presented with an unknown disease and “crash[ed] in an instant.”
WhiteCoat — an emergency physician, no less — had several hours to figure out what was wrong, didn’t figure it out, the patient died, and he was held not liable, because he followed the standard of care.
I know it helps to imagine that the medical malpractice system revolves primarily around hindsight evaluations of pulse-pounding episodes of “ER” (as Adam apparently does with the “60 seconds” remark), and that the nearly one million physicians in America rarely ever make mistakes, but the truth is most cases are obvious diagnoses to all but the most oblivious of physicians, and were obvious for more than long enough, or involve preposterously stupid events like removing the wrong limb or administering the wrong medicine.
I agree that claims of untimely diagnosis or treatment, especially outside ER situations, usually involve many hours, if not days or months, rather than “60 seconds.” However, I have to disagree that “most cases” involve obvious diagnoses or preposterous stupidity. To the contrary, the vast majority of litigation I see involves nebulous complaints and signs & symptoms so non-specific they could mean almost anything — though of course the etiology is crystal clear when viewed through the retrospectoscope. I’ve had one wrong-site surgery case in the last 10 years or more, and I can’t remember the last time I defended a medication error.
Ok, alter the previous statement a bit. Whitecoat had 4 hours, lawyers had 4 years. Doesn’t sound much different, does it?
“Retrospectoscope”
Great word.
I’ll amend my comment in one respect: in addition to the obvious diagnoses, a large number of cases involve the complete failure to diagnose the condition at all. Perhaps the physician pondered a few possibilities and dismissed them or wanted a wait-and-see approach, but that’s rarely in the records. More often, the records — viewed through the retrospectoscope, which is all we have — show a long line of symptoms indicating something is wrong, and a failure by the doctor to sit down for more than the 15 minute visit and really think about what’s going on.
I of course can’t speak to your abilities, but IMHO most defense lawyers completely bungle that situation, and instead of focusing on the retrospectoscope problem, throw up a flurry of defenses of varying credibility, causing the jury to doubt them and their client on every issue.
The short answer for doctors is that they need to stop, think, and write stuff down every once and a while. Not just symptoms on the visit, but possibly diagnoses.
Max: These are established biases, outcome and hindsight biases. They violate the procedural due process right of the civil defendant to a fair hearing. As with any bias, the plaintiff lawyer and plaintiff expert should be sanctioned if they subject the defendant to such a bias.
There is no correlation between quality of records and good or bad outcomes. The record orthodoxy is lawyer oppression and intimidation of the doctor.
My knee is in agony. My doc is hunting and pecking at his laptop. I take the laptop, throw it out the window. “Over here, ditwad, I am in agony. Do something.”
The patients family may well also be victims.
When someone dies in an unexpected manner the family understandably often seek answers about the death.
If the answers they receive are unsatisfactory in some way they will continue to search.
Unfortunately the first “believable” (to them) answer may be from an attorney seeing a possible malpractice case.
The family then goes from seeking answers to seeking revenge since they have no way to judge whether malpractice as opposed to a bad outcome occurred.
The end result is that a family searching for
closure ends up being tortured for years as the case winds through the court.
If the lawyer wins they are left with the “knowledge” that a physician killed their loved one, if the case fails they have delayed closure for years and probably still have doubts.
Not saying this is what happened in this case since the families process is not known.
I originally thought about this while on a jury panel for a wrongful death case. (Not medical)
The judge dismissed me when I told her what I though about what the plaintifss attorney was trying to do…
The public would be shocked to know that much of the legal system is not about truth, but what can be accomplished. In criminal cases, it is not nearly as much about convicting the right person as it is about finding a person to convict, a person for whom the evidence is sufficient to convince a jury that he is guilty, regardless of whether or not he is innocent.
We have seen in this trial of Dr. Whitecoat much of the same. It’s not as much about whether or not Dr. Whitecoat failed as a physician as it is about whether or not a jury could be sufficiently roused by emotion to find for the plaintiff, the facts be damned.
I agree that physicians could do a better job at communicating with patients.
Is it fair to drag a physician through 4-5 years of litigation costing tens of thousands of dollars, increasing his insurance rates, and leaving a permanent black mark on his record because a patient felt the physicians answers – even if appropriate – were “unsatisfactory in some way”?
Totally agree with you that it is totally unfair to the physician.
No matter how clear and direct the answers some families may naturaly distrust information from an involved party.
This is especially so in complex cases where allowing perfect hindsight provides a better outcome.
Of course many bad outcomes in life are avoidable if perfect hindsight is allowed – “if only I had quit smoking 20 years ago”
What “might” be helpfull would be a method for the family to get a truly independant review and explanation -before- an attorny is involved.
Once a malpractice attorney senses a possible case all possibility of understanding passes.
A few years back I was reduced to watching daytime TV for about a month by a painfull knee problem (AVN).
The number of “hurt – call us to see if you have a case” or “if you or a loved one …” attorney ads was mind-bogling.
“Is it fair to drag a physician through 4-5 years of litigation costing tens of thousands of dollars, increasing his insurance rates, and leaving a permanent black mark on his record because a patient felt the physicians answers – even if appropriate – were “unsatisfactory in some way”?”
Is it fair for you to imply that there are cases out there that have gone on for 4-5 years based on no more evidence than a lack of communication? Of course not.
My original point is that a bereaved family may be convinced that malpractice occured only after review by a malpractice attorney.
(In medical terms: see a surgeon you tend to get surgery)
This mostly applies to cases where the outcome could conceivably have been better had the doctor used the retrospectoscope.
So yes there are plenty of cases, such as Whitecoats, that may not have happened if better (neutral and trusted) communication had been available.
The family may well have never consulted an attorney if they understood the realities of diagnosing and treating a (rare?) fast moving and probably fatal in any case condition
Greetings, Dr. WC:
I was wondering if you happened to see this:
http://tinyurl.com/lvs5sz
Would definitely be interested in your opinion as to whether straight up caps would be beneficial, or just Health Courts, or some combination thereof, particularly in light of your recent, shall we say, travails.
Thanks for the serials on your trial and any insight you can provide!
I think that $250,000 caps on noneconomic damages are unfair to plaintiffs. On the other hand, I also think that $30 million judgments are unfair to medical providers – especially when those providers are often forced to see patients without expectation of compensation under the threat of federal EMTALA laws.
I would be in favor of several aspects of tort reform:
More generous caps – say $1 million on noneconomic damages
Periodic payment or economic damages – that way there are no windfalls if a patient dies shortly after a judgment
Heightened standards of liability for EMTALA-mandated care. Perhaps gross negligence or willful and wanton misconduct. I don’t mind providing the care. I mind risking my family’s financial security every time something goes wrong with a patient I have never seen before.
Health courts – knowledgeable arbiters go a long way toward rooting out frivolous cases
Workers compensation style system – right now, most attorneys won’t touch a potential malpractice case unless it has the potential to make more than $200,000. If you’ve been injured and lost your job for a year and had to go into bankruptcy, you likely won’t find a malpractice attorney to represent you. By creating a system where injured patients receive consistent reimbursement for injuries wrongfully caused by physicians, patients are better served because they receive consistent compensation and providers are better served because they are protected from the jackpot jury awards.
Loser pays – If plaintiffs don’t have sufficient funds to pay for a loser case that was filed, then attorneys who file the cases should face some liability. Let attorney malpractice insurers cover the potential losses. Attorneys who file too many losing cases would be deemed high risk by insurance companies and would lose coverage. Kind of like how things work in medicine now.
I think that a combination of any of these potential solutions would go a long way toward improving the malpractice system.
The best part about all of them, with the possible exception of health courts, is that they are all budget-neutral. Little outlay for implementing them.
Another option is to change the laws so that a patient could exchange (in advance) the right to sue for a “bad outcome” insurance policy that covers -full- tangible losses only.
This has the potential to significantly reduce malpractice expense for high risk fields such as ob/gyn or surgery.
It would also quickly compensate injured patients without (well less :-} the overhead of lawyers and courts.
The details would not be simple, but neither is the current mess.
Exceptions for truly bad care such as wrong organ removal would probably still be needed.
The vacination injury compensation system is an example of this idea, I don’t know how well this is working in practice but at least vacines are available.
“Heightened standards of liability for EMTALA-mandated care.”
I’ve yet to understand why poor people should have a harder time recovering for malpractice.
“Workers compensation style system – right now, most attorneys won’t touch a potential malpractice case unless it has the potential to make more than $200,000. If you’ve been injured and lost your job for a year and had to go into bankruptcy, you likely won’t find a malpractice attorney to represent you. By creating a system where injured patients receive consistent reimbursement for injuries wrongfully caused by physicians, patients are better served because they receive consistent compensation and providers are better served because they are protected from the jackpot jury awards.”
Workers compensation is a no-fault system. Ie, you get injured on the job, regardless of fault, you get paid. A lesser payment than you might receive were you to file suit outside the system, but you get paid. That is not what you are proposing. If you still require people to prove the “wrongful” nature of the act of the physician, then you haven’t changed anything. How you can claim that a true no-fault system would be budget neutral is beyond me.
As for “jackpots”, you want to trade places with the winner of a large malpractice “jackpot”? I didn’t think so.
As for periodic payments – why exactly should an insurer benefit simply because the victim didn’t live until their life expectancy?
“especially when those providers are often forced to see patients without expectation of compensation under the threat of federal EMTALA laws.”
This is a misstatement. The very reasons hospitals do subject themselves to federal law is because they want the federal dollar. Every contract has a tradeoff, and the tradeoff here is that if the provider wants that dollar, they have to give care pursuant to EMTALA. While it may not be an expectation of compensation on each and every patient, there is a larger expectation of compensation by the provider, which leads them to enter into that contract.
Incidentally, raising the bar for those who are to poor to afford emergency care beyond simple negligence is not budget neutral. If the negligent party (or their insurer) isn’t paying the bill for the resulting harm, the government likely will, since if they didn’t have money or insurance when they first came in, they certainly aren’t likely to gain it after they’ve been injured. The government will pay that cost.
“The short answer for doctors is that they need to stop, think, and write stuff down every once and a while. Not just symptoms on the visit, but possibly diagnoses.”
Max,
In addition to being insulting, this quote demonstrates your poor understanding of medicine. There are many symptoms for which it is routine to be unable to make a diagnosis, regardless of how smart you are or how many tests you order. Take syncope, a very common and potentially serious problem. In 50% of all syncope episodes no cause of the syncope can be determined, regardless of how many tests are ordered or how much time the doctor spends thinking. I had an abdominal pain case the other day in which the symptoms didn’t make any sense and did not fit well with any known disease. Alot of medicine comes down to physician gestalt. You have to stand at the bedside and look at the patient and see if they look sick or healthy. And there are scientific studies showing that physician gestalt is very good and is on par or exceeds laboratory tests for many complaints. Does this mean the physician gets it right every time? Nope. But it does mean there are times when “abdominal pain” is the best diagnosis. To make up a diagnosis and call that episode of syncope vasovagal when you don’t think it was does a lot more harm to the patient than just calling it “synocope, not otherwise specified.”
There are 100,000 proteins in the human body and we know the function for perhaps a couple thousand. Sometimes sepsis presents without fever, sometimes heart attacks don’t present with chest pain, sometimes people with meningitis don’t have headaches. Why is that? no one knows. In addition, a large percentage of all complaints (10-20%) are psychiatric in nature. Patients make up complaints (they may very well believe it) all the time. They say they have abdominal pain but no test in the world can detect the cause because the origin is psychiatric. Every kid between the age of one year and 4 years cries and fights and looks miserable when being examined by the doctor. Does that mean they all need works up for “irritability” and sepsis? Of course not. The doctor has too look at them and make a decision. Occasionally a doctor will be wrong. It is easy to look back and say “of course, that kid looked irritable, how could you miss that?” But the last ten kids of that age that the doctor saw looked irritable as well.
White Coat, you weathered the storm, and more power to you. I too have been in that miserable place, and I have never forgotten the outrage.
You suggest several policy remedies for tort reform, but they are not realistic. Physicians will not be able to accomplish these goals. It took California doctors more than 10 years just to get the $250,000 cap on noneconomic damages, and we still get baseless, shakedown lawsuits. The underlying problem persists.
I believe there is only one answer to the problem of abusive malpractice litigation. Unlike the remedies you suggest, doctors do have the power to implement it. The answer is to strike at the source. Sue the losing plaintiff. Not the plaintiff’s lawyer, but the plaintiff. Your chance of prevailing is probably pretty small, but if you’re willing to spend the money, you will make your point.
Unlike physicians, patients don’t buy insurance against tort actions. The wife and daughter who sued you would have to pay out of their own pocket to hire a lawyer to defend them. After you were done with them, even if you didn’t prevail they would doubtless suffer serious financial consequences. They might even lose their house. They would surely not feel like winners.
But in addition to punishing the wrongdoers, you would create a high profile example of what happens to people who dare to misuse the courts to try to shake down innocent doctors. You can bet it would get the attention of the press, not to mention the plaintiff’s bar. You want a piece of me? You’d better win, because I have the means and the will to come back after you if you don’t.
The only effective response to those who willfully and wrongfully harm others is swift and certain punishment. This applies to the schoolyard bully, the genocidal tyrant, and people like your plaintiffs. On the other hand, if doctors act like prey, they should not be surprised when they attract predators.
I’ve been a plaintiff suing an insurance company for a cab service. It was an awful experience.
I was hit by the cab while stopped at a red light. The insurance company said “we agree that we are liable, but deny that you had losses.”
It took years of my life, and eventually settled out of court just before the court date.
I’m torn between the ridiculous cost of litigation (particularly frivilous cases) and the needs of the “little guy” to be made whole.
I’m convinced that the little guy must be allowed to have some recourse, or we will see the abuses of the early 20th century “robber barons” again. However, I believe that we need to see limits on awards as well. How to do that in the context of allowing insurance companies to exist and be profitable is a challenging question. I *need* insurance so that I am not bankrupted by a house fire or a major illness.
Tort reform must be a part of lowering medical costs.
Tort reform has never lowered medical costs in any state it has been enacted. Why would it now?
I’m not expert, but it simply makes sense to suggest that lowering expenses would lower costs. According to some googling, it *does* work. http://www.aaos.org/news/aaosnow/sep08/reimbursement9.asp
http://aspe.hhs.gov/daltcp/reports/medliab.htm#sectionVI
Got any data to back up your assertion?
Respectfully,
Tom
Your links don’t support your assertion of savings to anyone but insurers. At “best”, tort reform increases insurance company profit. Even if the insurers do decide to pass on any savings to physicians, it doesn’t reduce costs to patients. If for no other reason than because it doesn’t reduce the need for the care, it simply makes it less likely that the responsible party (and their insurer) pays for the harm caused. Also, since the vast majority of physicians don’t really set their own reimbursements, even if they wanted to pass on the savings, they couldn’t.
We’ve had tort reform for decades, and there is literally no evidence that medical care is any cheaper. In fact, most of the alleged benefits have proven to be illusory after 30 years of even the most draconian “reform”.
Matt,
With all due respect, I disagree. “Once the tort reform proposals had time to work, rate increases began to moderate; rates increased just 6.7 percent in 2005 and actually declined by 1.7 percent in 2006 and by 10.9 percent in 2007. The 2007 rate reduction translates to an average savings of at least $1,000 per Ohio physician.” (From the 1st link)
You assert 30 years of draconian reform. I have no idea what you’re talking about. I want to hear your argument, but your bold assertions with no supporting evidence cause you to lose some credibility.
Respectfully,
Tom
Tom,
While one can argue that rate increases moderated (although since rates “moderated” nationwide, regardless of “reform”, that’s questionable), there’s no evidence that any “savings” were passed on to the healthcare consumer. Tort reform is not a new issue – if those savings existed, the reformers would be shouting them from the tops of buildings. As to the savings to Ohio physicians, without more data about their insurers’ investment returns, their loss reserves, etc., it’s impossible to say what actually caused rates to decline. For example, in the 90s, rates were flat or declining as companies actually underpriced premiums because they were making the difference up on the float. Then the market crashed, and the float went with it, thus premiums readjusted. This is not a new occurrence, as there have been cries of crisis in every decade’s stock market crash. Further, since tort reform doesn’t guarantee any rate declines, there’s nothing to keep the insurers from jacking the rates back up. However, the injured patient is still screwed regardless.
California has had a hard cap of $250K on noneconomic damages, the most common type of tort reform, and consumers aren’t seeing significant savings. In fact, despite all the promises of what tort reform is supposed to do, California is a healthcare disaster.
Incidentally, I noted this in the Ohio press release you cited:
“In other words, there was a 20 percent reduction in overall claims from 2005 to 2006 and a 24 percent reduction in claims resulting in a payment.
Additionally, the 2005 data revealed that claims subject to the new tort reform law had indemnity payments nearly $100,000 less than claims not subject to the new law.”
Is this a good thing by itself since we don’t know the legitimacy of any of the claims? Simply because the insurer paid less does not necessarily mean that was good for anyone other than insurer. After all, the care still has to be administered, so now instead of the responsible party paying for their harm, the cost is likely shifted to the taxpayer if it’s a significant injury.
Tom Cooper writes, “I’m convinced that the little guy must be allowed to have some recourse..”
It turns out that the little guy in medical malpractice lawsuits is the doctor, except for those cases where there actually is some negligently caused injury to a patient. The doctor is on the defense, and he is the one who bears the various types of costs. There is no down side for the losing opportunistic plaintiff. Unless, of course, the doctor goes after him in a subsequent lawsuit.
This is not even remotely true.
The doctor does not have the burden of proof, and does not bear any costs. His insurer does, regardless of whether he wins or loses. The plaintiff, on the other hand, does bear the costs if they win. And if they don’t win, their attorney does.
matt,
No costs? I recently finished a court trial. It was postponed twice, then took 8 weeks so I lost 3 months of income. Oh, and since my partnership is self insured then the costs do come from the partnership. And, Oh by the way, the first 15k of defense cost comes from the doctor partner alone. Your ignorance never seems to embarass you though.
I agree that CAlif. 250K cap does not do much except help independent insurers. If I am contemplating a test that is mostly defensive I don’t think “I don’t need to do it because there is a 250k cap”. No, wo what I think is right for the patient but also keeps me out of a lawsuit. The 250 cap is irrelevent. It does not seem to deter lawyers from filing dumb claims so it has no effect on reducing healthcare costs.
Russ not everyone has a deductible that size. You presumably took it to save premium costs. As for the other cost if you can think of a way to resolve complex disputed without taking up any of your time, by all means let’s hear them.
matt,
don’t play dumb. you have heard it all before (health courts, no fault review and compensation systems, etc) but lawyers enjoy and benefit from the current systme far too much.
A little late to the discussion here, but still I would like to congratulate you Dr, for your victory.
I personally think you were very, very lucky. I once served as a juror in a malpractice case which ended up with a hung jury. Believe it or not, all of us (the jurors) thought the doctor performed his surgery and the rest of his patient care flawlessly. But, the reason for the hung jury was that half of the jurors felt sorry for the defendant and that is why they could not cast their vote for the doctor.
As I recall, since these types of cases are not criminal cases, you do not need all twelve jurors to agree, just about eight of them. It scares me to think that if just two more of us went with our emotions that doctor would have lost his career despite the fact that everyone thought he had performed his duties to the best of this abilites.
Like your laywers told you, it is all a show. It doesn’t matter really what happened, instead its the impression which you give to the jurors that matters. And that is a scary thing to know.
I feel blessed to have been able to read this story straight through from beginning to end. I am a pharmacist and I have seen good doctors and pharmacists crumble from human error. I am also a patient of a hysterectomy “gone wrong”. I had internal bleeding and nearly died. The OBGYN was on top of it the whole time. He apologized, called the hospital day and night to keep up with me, and was always there to answer questions. There was never an idea in my mind that I would sue. He is human as human as the rest of us. Thanks for a great story….