Plaintiff’s attorney Bruce Fagel, MD, JD, a malpractice specialist in Los Angeles, spoke with Medical Economics for a cover-story interview in their last-but-one issue (“How I pick the doctors I’ll sue”, Aug. 20). The whole thing is worth a look; here are two snippets.

On how juries decide:

When doctors are cross-examined in a deposition or during trial, they often try to avoid responsibility for their actions. In fact, some defense attorneys encourage this attitude, instructing their clients not to answer even reasonable questions. As a result, jurors may ultimately be convinced of a doctor’s negligence not by the nature of his actions in the case, but by what looks like intentional evasion of responsibility when explaining why something went wrong.

The real value of our jury system in medical malpractice cases has little to do with the jurors’ ability to understand the medical facts and issues in the case. In fact, it’s widely accepted that they don’t understand much of the clinical information presented to them. What they do understand is when a witness is telling the truth. Doctors would do well to remember that.

And on tort reform:

I don’t think the idea of a cap on noneconomic damages is unreasonable, since it’s so difficult to put a dollar value on pain and suffering. What’s unreasonable is the fact that MICRA [the California medical liability law] was passed in 1975, and the $250,000 limit wasn’t tied to inflation. As a result, each year plaintiffs here are really getting less money. Today that $250,000 is worth less than $75,000 in 1975 dollars. So it’s a real problem for plaintiffs with legitimate claims for pain and suffering.

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