Kicking Over The Hornet's Nest - Medical Malpractice Lawsuit Crisis

Date : June 5, 2008

Dear Valued Reader,

First a comment from Rob Lambert:

In 16 years of doing this newsletter I have never had so many passionate responses from readers as this series on Medical Malpractice suits has generated.

Many of my doctor readers think that a trial lawyer like Randall simply doesn't understand the pressures and responsibilities of practicing medicine, or the devastation that a doctor undergoes when he or she is sued. Two doctors even cancelled their newsletter subscription in protest (their loss!). On the other hand, Dr. Mike's passionate reply to Randall's comments irritated a number of our lawyer readers and drew accolades from many doctors.

The bottom line is that many lawyers who sue doctors for a living think that it is just too difficult to bring the smaller medical malpractice cases and that the limitations on recovery are simply unfair to the victims of real malpractice. On the other hand, it is clear that many doctors have experienced many sleepless nights as a result of what they feel are frivolous lawsuits.

In short, there is no love lost. Only two things are clear. First, there is little or no meeting of the minds between the doctors and the plaintiff's bar. The battle will continue likely beyond the lives of every person reading this newsletter.

Second, everybody.... doctor, lawyer or just casual observer needs solid Asset Protection. At least while the battles rage the person with a solid Plan in place will at least sleep peacefully.

Best,

Rob

Randall Edwards on the continuing Malpractice saga:

A couple of weeks ago, I ran an article here entitled "The Phony Medical Malpractice Lawsuit Crisis." In it, I argued that the biggest threat to a doctor's assets is not a medical malpractice lawsuit, but rather bad medical business deals, bad divorces or bad non-medical business deals. I also asserted that the so-called "medical malpractice lawsuit crisis" is more a matter of insurance company propaganda than an increase in medical malpractice lawsuits.

Using a few examples from my own law practice, coupled with a passing reference to some studies I have read, I said that medical malpractice lawsuits are actually going down in number while malpractice insurance premiums are going up, despite all of the much-touted "tort reform"measures adopted in various states that were meant to stem the tide of the "crisis" in malpractice lawsuits.

During the years I have contributed to this newsletter, I have never seen quite the response that this column got -- both positive and negative. Dr. Mike Sinclair's lengthy response to my article, point by point, has already been published here. Needless to say, he disagreed with almost everything I said, characterizing my points as "idealistic rubbish," and saying that I exhibited a "complete lack of knowledge of reality." He also referred to attorneys throughout his article as "scum bucket lawyers." In one telling paragraph, he let it all hang out about how he feels about the legal profession:

"Remember, a lawyer's job is NOT to find the truth, their job is to persuade. Their job is to zealously promote their client's position. If the truth gets in the way, they work around it. That is their job."

Hmmm. I fear that this may say far more about Dr. Sinclair's particular biases than it does about the legal profession, but I think that responding in kind to that kind of attack doesn't really promote any kind of meaningful search for common ground. Of course, it's pretty difficult to have any kind of dialogue with someone who starts with the presumption that you are a lying, unethical "scum bucket."

From Dr. Sinclair's response and others I received, at least one thing was clear. Not only did I touch a nerve, but I apparently stomped on it. I expected some reaction. I'm not sure that I was prepared for the vociferousness of some of it -- nor of the utter hostility that some doctors feel for the entire legal profession.

Here are just a few of the many comments (some of which I have edited for length and/or the level of vitriol), and my responses:

Subscriber comments:

"Let me disabuse you of the notion of 'frivolous' lawsuits...your article is anecdotal....I also can list several instances of suits that are completely without merit (some that sought 14 opinions and still never got an 'expert' witness, if that is what you lawyers term your 'hired guns.')"

"The awards are ridiculous, and they not only drive up rates, but also make it more difficult to obtain a reasonable rate if you are simply named. ..."

"And the cost goes far beyond your superficial analysis...it affects every doctor-patient relationship, which has become adversarial, rather than cooperative. Every office task is burdened with additional paperwork, requiring more time and more staff.

"These suits take up an inordinate amount of time, a huge waste. The next time you have to wait for your doctor, just remind yourself of the total time he's spent defending himself against these actions."

"There is a crisis. And it's not the insurers. It's an unrealistic sense of entitlement bred by lawyers who rationalize what they are doing in the defense of those willing to join them in the malpractice lottery."

My Response:

A couple of points here bear mention.

First, the examples I gave weren't anecdotal in the sense that they are stories one hears around the table at a convention of lawyers -- instead, the examples I gave were of actual clients in actual cases that I handled. I don't presume to say that every case that has ever been brought against a doctor is an absolute slam-dunk. Far from it. I can say that the cases I have brought had merit.

Second, I also don't presume to be a statistician who undertakes studies on rates of malpractice and the effect of malpractice awards on insurance rates. I leave those to the professionals. From what I have been able to gather, though, the studies are clear that medical malpractice insurance rates have gone up overall, even while more restrictions on malpractice claims have increased and malpractice lawsuits have diminished. In that regard, I would refer you to a few articles that I've reviewed:

“Medical Malpractice Caps Fail to Prevent Premium Increases, According to Weiss Ratings Study,” (subhead “Physicians in States with Caps Suffer 48% Increase in Median Annual Premiums Even While Insurers Enjoy Slowdown in Payouts”).

The study itself can be found at Wiess Ratings Click Here. See also the Consumer Affairs' article on the subject, headlined “GE: Malpractice Caps Don't Work,”

From what the "objective" (non-anecdotal) studies show, the rise in malpractice premiums is due less to some malpractice "crisis" that can be cured with "tort reform" than to an "insurance crisis." At least, that's the way I read these articles.

Subscriber comments:

"Unfortunately, you dullards chose to send this garbage to a practicing physician. Gee what an unbiased article! ... and written by a lawyer.

"No bias there. You should be ashamed. Of course there are poor consequences and actions by physicians. Far fewer than the inappropriate numbers of people who seek out trial lawyers to try to get someone to 'pay' for a bad outcome or a dread disease - it's always someone else's fault!! "Taking responsibility for one's own actions or recognizing that 'bad things aren't always someone else's fault' are lost concepts in our suit happy society."

My Response: I can only respond to this with another personal "anecdotal" story. I was once one of a team of lawyers who represented a neurosurgeon who had been one of the most adamant advocates of so-called "tort reform" around. He pushed the legislature for the whole ball of wax when it came to restrictions on malpractice actions -- caps on "non-economic damages," caps on attorneys fees, a complicated "pre-litigation" process, and on and on -- until he was the victim of another surgeon's malpractice during a "routine" back surgery.

Once he realized that he had "reformed" his way out of not only ever being fully compensated for the loss of his medical practice but also a lifetime of painful days, the scales fell from his eyes, and overnight he became one of the most strident advocate of malpractice victims' rights. I've said again and again that one's view of malpractice "reform" often depends on which side of the knife you're on. If you happen to be on the sharp side, things look different than when you're not. I am not unsympathetic to those who have been sued for malpractice. I have represented them and, for that matter, continue to represent them.

On the other hand, I am also not unsympathetic to those who have been the victims of genuine medical negligence. It's not always simply a matter of trying to blame a doctor for a bad outcome ... sort of the "(crap) happens" defense. Sometimes it's a matter of whether you're the one to whom the (crap) happened. Are there malpractice actions without merit? Uh ... yes, unfortunately. I've never said otherwise. Are there meritorious malpractice actions? Again ... yes, unfortunately. Do we have a "crisis?" In my view, only to the degree that it has been manufactured by the insurance industry ... and it's not going to go away because of draconian "tort reform."

Subscriber comments:

"I am an orthopedic surgeon. Our group has been sued by a patient of a retired doctor about a knee operation. There was no real problem with the knee other than that a consultant in (another city) made some spurious allegation as to the reason the patient was still in pain after surgery. He had his knee re-done in (another city) and guess what? He is STILL in pain. So who did he sue? The original surgeon? Not even. He sued US because his lawyer didn't want to have to travel out west to the retired doc's location. We were alleged to not have "supervised" our partner adequately. There was no malpractice. The insurance company insisted on settling. I can go on and on but the point is there IS a problem with malpractice insurance here and most places. It is NOT all about the rates going up because the companies are trying to protect their profit margins, although that is an issue I agree. It is about having your guts yanked out for several years emotionally, having your assets threatened, having your good name splashed all over the papers with accusations; and all because you tried to help someone... often someone who never even paid you in the first place."

My Response : I suppose the question I would ask here is whether so-called "tort reform" would have weeded this case out, if it truly had no merit. (There are, of course, many procedural methods to get a frivolous case tossed long before it could possibly get to a jury, all of which have existed long before any "tort reform" was ever thought of, but I digress here). I can't answer that, anymore than I can say whether I would agree with this doctor's assessment of the merits of the case if I knew all of the facts. I can say that studies have shown that doctors are by far the most advantaged players in any malpractice lawsuit:

See, e.g., "Malpractice Juries Tend to Side More With Doctors, Researcher Finds."

See also, "That Malpractice 'Epidemic'? Legal Analysis Finds That Patients Fare Poorly In Court."

Subscriber comments:

"Are you guys crazy, e-mailing me that hogwash? That's akin to mailing a Jew a letter written by Hitler, telling him it's the Jews' fault they were persecuted. Save that diatribe for someone who doesn't know better. I do. This was in extremely poor taste. Please take me off your e-mail list."

My Response: I don't even know how to begin to respond to this one, so I won't. I'll just let it speak for itself. I'm not sure that equating me with Hitler will further any dialogue, but I'm pretty sure that this particular reader wasn't much interested in dialogue.

Subscriber comments:

"A Great Big Heartfelt THANK YOU for publishing your article about the Phony Medical Malpractice Crisis. As a California attorney who has also represented both doctors and patients in malpractice cases, I must say that you completely hit the nail on the head. As I'm sure you know, here in California "tort reform" was passed years ago, resulting in a $250,000 cap on general damages in medical malpractice cases. Perhaps as a result, but also as a result of the great expense and risk of taking on medical malpractice cases for plaintiffs, I am of the belief that many, many people injured by medical malpractice never obtain any remedy whatsoever, because their cases are not big enough to justify the investment or the risk that a plaintiff's lawyer must take on.

"Anyway, since your forum sometimes looks like a front for the defense bar, it was nice to see a more even-handed approach."

My Response: Thanks ... but, believe me, you appear to be in the minority on this one, at least of those who took the time to respond.

Subscriber comments:

"You'll probably catch a lot of (crap) for writing it, but I thought you wrote a great article on medical malpractice."

My Response: I appreciate the support, and yes, I did catch a lot of ... uh, crap ... for writing it. I appreciate that Rob Lambert was willing to run it.

We may not always agree on either the facts or the solution to the so-called "malpractice lawsuit crisis." Nonetheless, thanks for your interest ... I think.

Randall K. Edwards practices law in Utah, Nevada, California and Arizona from his office in Salt Lake City

ABOUT THIS EDITOR:

Asset Protection and Estate Planning Practice: Advise clients on asset protection planning and estate planning. Practice includes review of overall financial and estate matters, advice regarding and drafting of various business entities .

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