Medical Malpractice Cases: Fact and Fiction
My response to “Frivolous Lawsuits Hurt Patient and Doctor” by Dr. Augusto Lopez-Torres in the Sun-Sentinel and posted on Sun-Sentinel.com.
As a practicing personal injury attorney, I naturally see medical malpractice issues differently than Dr. Augusto Lopez-Torres. I’d like to share my views on three issues doctor Lopez-Torres’ article raised: (1) Protecting doctors from frivolous lawsuits; (2) Expert witnesses; and (3) Protecting patients from doctor negligence.
As background, I have practiced personal injury law in California for a few months short of thirty years. My law firm, Bisnar Chase, receives about 200 medical malpractice inquiries a year from people who feel they have been the victims of medical malpractice. We find that about 25% of the inquiries probably include medical error. About half that many, 12% of those inquiries, probably involve medical malpractice, which is different that medical error. Of the inquiries that probably are medical malpractice, less than 20% of them are economically viable to pursue. Bottom line, less than 3% of the medical malpractice inquiries that we receive, actually involve medical malpractice and are economically viable to pursue.
1. Protecting doctors from frivolous lawsuits
It would be economic suicide for a personal injury law firm to pursue cases that are not actual medical malpractice or economically viable. Personal injury attorneys only get paid if they win. The cost of pursuing a medical malpractice case through trial easily exceeds an average of $100,000. Jurors usually side with doctors in a trial - as evidenced by more than 80% of the medical malpractice cases that go to trial are won by the doctor.
Where is the economic incentive for an attorney to pursue a frivolous lawsuit? It doesn’t lead to any economic reward. The medical malpractice insurance companies fight these cases like crazy. The insurance companies don’t want to pay out any money and hurt their profits. The medical malpractice defense attorneys are some of the very best defense attorneys in the nation. They make money by fighting cases, not settling frivolous lawsuits. In fact, if there really is a frivolous lawsuit, the defense attorneys get to be great social heroes by fighting them and they make a pile of money in the process.
So, I think Dr. Lopez-Torres has fallen victim to his medical malpractice insurance company’s propaganda and that his medical malpractice insurance rates have gone up because of frivolous lawsuits. I think a close inspection of medical malpractice insurance company rates and profits will show that the increase in rates is mainly due to insurance companies increasing their profits. Then they are diverting the attention from their profit margin to their favorite scapegoats, frivolous lawsuits and personal injury attorneys. I suggest that Dr. Lopez-Torres check the growth in profits by his insurance carrier and the percentage of premiums that are actually spent on medical malpractice settlements and judgment payments.
If frivolous medical malpractice lawsuits are such a problem, why not institute a “loser pays” system. In other words, why not pass a law that says in medical malpractice lawsuits, or any personal injury lawsuit, that the losing side pays for the attorney’s fees and costs of the winner. That would surely stop frivolous lawsuits if they truly are a problem. However, the insurance companies’ political lobby will not allow a “loser pays” system to become law. Why? Because they would have to pay attorney’s fees in their “frivolous defense” cases.
In balance, I think a close examination of all medical malpractice lawsuits would reveal that there are multiple more “frivolous defense”, (“deny, deny and delay” tactics) cases than there are frivolous lawsuits. A “loser pays” system would eliminate a great deal of whatever frivolous lawsuits and frivolous defense cases that there are. Not only that, but the insurance companies need to keep their scapegoat, the frivolous lawsuit, and the greedy personal injury attorney myth alive to deflect their enormous profits and raising rates.
2. Expert witnesses
Dr. Lopes-Torres knows the answer to his question, he just wasn’t being honest about it in his article. Dr. Lopes-Torres says, “Many malpractice lawsuits are decided on the scientific or clinical testimony presented by doctors or scientists in the courtroom. However, many "expert witnesses" that testify for personal injury lawyers are in fact guns for hire who lack expertise, and have been brought in from other states. Why are they brought in from out of state?”
By law it is necessary to have a medical expert testify to support a medical malpractice claim. So, not “many malpractice lawsuits are decided on scientific or clinical testimony resented by doctors or scientists...”, by law, all of them are. Dr. Lopes-Torres knows or should know that fact.
Medical malpractice experts are easily challenged on their expertise in any given field before they testify in front of a jury. Any proposed “expert” that is not sufficiently qualified to testify is disqualified through the litigation process. Dr. Lopes-Torres knows or should know this fact.
Every expert who testifies for the plaintiff or the defense is hired to testify. Just as there are experts who regularly testify for the defense there are experts that regularly testify for the plaintiffs. It goes both ways. Dr. Lopes-Torres knows or should know this fact as well.
Dr. Lopes-Torres also knows that any doctor in his community that would testify against any other doctor in his community is going to be shunned like a leper, not likely to ever get another doctor referral and would not be welcome at any local doctor function or organization. Local doctors do not testify against local doctors no matter how clear cut the medical error may have been. So it is necessary that doctor expert witnesses be brought in from other states. If doctor expert witnesses were restricted to local doctors, harmed patients would not be able to secure an expert witness. The pressure on doctors to keep quiet about medical errors is much too great.
3. Protecting patients from doctor negligence
Dr. Lopes-Torres’ article gives one sentence to patients’ rights when he mentions the peer review process, “This is a powerful tool that allows physicians to supervise their colleagues in complicated medical situations and it aims to protect their patients.” Is Dr. Lopes-Torres advocating that the process for holding doctors accountable when they do commit medical malpractice is a peer (other doctors) review process? Does anyone think that this process is superior to our open court room jury trial process?
Negligent doctors should be held accountable. Victims of medical malpractice deserve to be compensated. Anyone abusing the process should be punished. There are doctors who sometimes make errors. There are “bad” doctors and there are “bad” attorneys. What we all want is a level playing field that produces “justice for all”. Not a free pass or a look the other way system for negligent doctors.
Comments
The government should put caps on YOUR attorney fees similar to the ones the doctors got hit with years ago.
Pennsylvania CRNA
Posted by: tina | May 30, 2008 5:23 PM
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Posted by: WEL | August 28, 2008 12:38 PM
You made excellent points. In view of the high cost of litigation, I would like to offer this post.
Case Screening Tips for Attorneys: Ruling out Defensible Actions
Acceptable Risk and Medical Judgment
With Every medical treatment, surgery and diagnostic procedure there is a risk of producing complications that will cause injury or death even when the providers perform all of the tasks within the acceptable standards of care. This especially holds true when a surgeon’s cutting instrument slips and causes damage to a healthy organ.
Certainly, the patient wants to blame the doctor and nursing staff if he/she ends up worse off after the surgery or treatment. Hence, you have many people sending emails to lawyers’ websites describing horrendous injuries blaming the doctors and/or nurses. The dilemma, of course, is how to screen these emails effectively to avoid wasting money on mirages. Aside from the obvious turndowns, there are those horrific injuries that peak the interest of all reasonable attorneys and many of those prospective clients tell very interesting stories of how the surgeon cut or removed something that should have remained intact.
However, unless the incident falls in the category of the eleven never-events listed by the Center for Medicare/Medicaid Services (CMS), one has to scrutinize the described adverse occurrence for, among other factors, acceptable risk and medical judgment.
For example, with patients who have kidney stones, the urologist has to determine which of three procedures to employ for removal. There are a number of factors to consider for the best chance of achieving the desired result with the least amount of invasiveness, the most important of which are the respective positions of the stones and the anatomical structure of the involved ureter. The three types of procedures are ultrasound pulverization, lithotripsy (inserting a wire into the ureter to deliver an electric charge to break up the stones) and open surgery. Each of the procedures has inherent risks such as laceration of the ureter during lithotripsy in eight percent of all cases. Thus, the occurrence of such a complication does not constitute negligence because the risk of harm for doing nothing is much greater.
Case in point: I recently screened an email from a pleasant sounding young man, 50 years of age, who had kidney stones, went into a hospital for a lithotripsy and the urologist lacerated the ureter, which necessitated open surgery for the repair. Furthermore, the resulting scar tissue and genetic thinness of the ureteral wall renders any future formations of stones in that kidney inoperable. Thus, since this man is genetically predisposed to forming kidney stones, it is likely that he will eventually lose the kidney. Based on this history, it was clear that this case would most probably end with a defense verdict.
In a strikingly similar case in Hawaii, the court of appeals upheld the defense verdict. Interestingly, the plaintiff never alleged that the actual laceration of the ureter was the cause of action for negligence. Her contention was that the urologist opted for the wrong procedure given the position of the stone and failed to obtain informed consent. Regarding the former, the court opined that recommending one procedure over another is a matter of medical judgment and there is no liability if the outcome proves that the physician was wrong.Finally, regarding the latter, the court ruled that even if plaintiff had not signed any of the consent forms, which clearly stated in non-technical language the risk of ureteral laceration, infection and other complications, a reasonable person would find the risk acceptable to try to avoid open surgery or the consequences of doing nothing.
Ramos vs. Lattimer NO. 22402 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII
Posted by: Thomas Sharon, R.N., M.P.H | September 14, 2008 5:44 PM
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Posted by: WEL | January 5, 2009 3:54 PM
Great Article! Would you mind if we re-posted this article on our blog with a link back to yours? Thanks!
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