Medical liability case selection

by Walter Olson on May 18, 2008

“Here’s one of their secrets: They’re not looking merely for cases of physician error; they’re also looking for unsympathetic defendants — for physicians who seem unfeeling.” (Shirley Grace, “The Law: Trial Lawyers Tell All”, Physician’s Practice, Apr. 1 (via KevinMD).

More: Coincidentally, the Times covers the “medical apology” movement this morning: Kevin Sack, “Doctors Say ‘I’m Sorry’ Before ‘See You in Court’”, New York Times, May 18.

{ 6 comments }

1 Supremacy Claus 05.18.08 at 11:13 am

The obverses are also true. You have a very good case. However, you smoke, are fat, have tattoos, have rough manners, you are not a cute, blond baby, you’re out. The insurance will also pressure the innocent doctor to settle if he is not sympathetic.

The point is, the trial is a fairy tale theater production. 90% of the plaintiffs with meritorious cases do not pass the audition. Many innocent doctors are forced to settle.

Yet, I tell doctors they will miss the current situation. Deming continual improvement of 100% of their mistakes by insiders will replace the farce of today. Today, only 1 in 50 of their major mistakes gets second guessed by a lawyer who does not know medicine. I get booed.

As a patient, I want Medmal Theater closed. It is a failure from every angle for the patient.

2 throckmorton 05.18.08 at 11:48 am

S.C. is right, present MedMal is theater. I would hope that our overall goal is the best healthcare for most people. Unfortunately this is not the case. All medical conditions carry with them the possibility of an adverse outcome. Patients and attorneys see adverse outcome equals malpractice. Therefore if something bad happens, it must be due to the medical system and this means money. Since adverse outcomes due happen and most often they are not the result of malpractice, you really need to have high emotional factors to win a jury case or be a big enough problem to get a settlement.

Lets look at some simple procedures. We know that roughly 1/1000 IV sites will either get an infection or be immflamed from the medications given. Does this mean that 1/1000 are due to malpractice? No, any time a piece of plastic enters the body there can be a problem.

Attorneys blame the legal system for why they choose clients with high emotional cases but shun the cases where true neglect has occurred. Medical personnel blame the legal system for ignoring scientific evidence. By doing this, both seem to indicate that we need tort reform.

One of the best examples I can think of are all the silicone breast implanted women who were paraded by their attorneys infront of the camera and courts claiming that their statistically insignificant rate of connective tissue dieseases compared to controls were the fault of the implant manufactoring companies. Here we are 15 years later with it scientifically proved that the implants were not at fault.

Attorney: dont let science get in the way of the pity factor. Health providers: emotion trumps scientific evidence.

3 Gerry Oginski 05.18.08 at 5:03 pm

“They’re not looking merely for cases of physician error; they’re also looking for unsympathetic defendants.”

That’s only partially accurate. When a potential client comes into the office with their tale of woe, the trial attorney, for the most part, does not know whether the potential defendants are sympathetic. The attorney will only get that viewpoint during or after the doctor’s deposition.

The potential client might have an inkling about the doctor’s bedside manner and whether the doctor is arrogant or aloof. However, an experienced trial lawyer should never make a judgment call on whether a doctor is sympathetic based solely on the prospective client’s observation. You need more information, and for the most part, the attorney will not have that information when deciding whether to take a particular case.

4 Supremacy Claus 05.18.08 at 5:49 pm

Gerry: Please, explain to the public, why 75% of medmal cases are weak, and fade out or lose. Then compare that record with that of the criminal prosecution where the reverse is true, 75% succeed, despite their much poorer resources, and much greater obstacles. Listed here.

http://supremacyclaus.blogspot.com/2008/05/standard-of-professional-care-in-trial.html

Doesn’t that fraction of weak cases represent a mass tort, and don’t the medmal lawyers owe the doctors of your state a $trillion? Because this legal misconduct has gone on for decades, scienter warrants exemplary damages from the assets of the lawyers, and not from those of their firms nor of their insurance companies.

The privity obstacle to liability to the adverse third party has no basis in the law nor in the Constitution of the US nor of the state.

5 jb 05.18.08 at 11:51 pm

I’ve recently done some research on this. About 3/4 of patients with meritorious claims don’t file suits, because they’re intimidated, too busy dealing with the crisis caused by either the original injury or the malpractice, or some other reason. About 3/4 of the cases that are filed are unavoidable bad outcomes, or cases where the doctor had to choose between options with different risks.

So the current system is terrible for: patients with good cases, doctors with good cases, and doctors with bad cases.

6 Deoxy 05.19.08 at 12:50 pm

SC – bad example (presecutors), especially post-Nifong.

Of course, it’s bad for many other reasons, but the best and most important reason it’s bad is that you are assuming prosecutors to be the model we want to emulate, without showing that they A) prosecute the right people, or B) choose to not prosecute the wrong people. What they DO do is only bring cases they think they can win… which makes perfect sense when you realize that their “gain” from any case is having a winning record, which makes them look good, where trial lawyers often make money even on weak cases (small settlement), etc.

and jb sums up the issue particularly well – the current system is only good for the lawyers.

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