Sunday, July 12, 2009

Medical Malpractice Strikes Home: A Time to Serve


For a while now, I’ve been in between lawsuits. I am now pleased to report that I am a defendant again. Such good fortune, like a lottery win, descends upon doctors without warning or invitation. Nothing else can leaven a physician’s morale more than opening that thick envelope delivered by certified mail. We should not regard a medical malpractice lawsuit as a personal legal assault, but rather as an opportunity to promote truth, justice and the American way of life. (If I had the technical skills, an audio of the Star Spangled Banner would now begin.) We physicians, through our involuntary participation and testimony, can shed light in the darkened corners of the medical world. This is no time for physician anger. This is a time to give back and make others whole. Litigation is a natural extension of our professional mission to serve humanity. When viewed from this perspective, sitting in the courtroom or giving a deposition are important opportunities to heal our injured patients. That’s why, as a defendant again, the sun shines a little brighter, the songbirds sing a little sweeter…

Doctors, like everyone else, have to fully accept society’s prevailing ethos:

Every adverse outcome has a responsible perpetrator who must be sought out and punished.

When I perused the complaint against me, I was struck by how many defendants would be joining me in this important humanitarian endeavor. Here are the players, withholding their true identities.

Plaintiff

-vs-

Physician 1
Physician 2
Health Center
Surgery Center
Physician Practice 1
Physician 3
Physician 4
MDWhistleblower
Physician Practice 2
Physician 6
Physician Practice 3
Physician 7
Physician 8
Hospital 1
Hospital 2
Coroner’s Office
Physician 9

I certainly wasn’t going to be lonely. I had more team members than a football squad.

I won’t discuss any of the clinical particulars, so my lawyers won’t suffer apoplexy. I admit that I am puzzled why I was called to serve humanity in this instance. My professional involvement with the patient was brief and I successfully addressed the clinical issue at hand. Follow-up appointments were advised, scheduled but did not occur.

I have no opinion on the merits of the case with regard to the numerous other defendents, since I never saw the patient again. My staff advised me that the current plaintiff attorney firm is the 4th so far. I presume that the first 3 didn’t believe that my conduct merited inclusion. In tort law, there’s no ‘3 strikes and you’re out’ provision. The current law firm managed to find a physician who was willing to sign an affidavit of merit, an Ohio requirement since 1995, affirming that my care and treatment were negligent. I can only imagine how effortless it is to cross this legal threshold. Tort reform, a necessary response to an oppressive legal system, does not address the front end, lawsuits filed without merit.

If I am dropped from the case, as I expect, the ride will be an expensive journey. Add up the number of defendants above and then estimate the aggregate cost for all of our legal defenses. This will be a staggering amount of cash. If the physicians, et al prevail, then hundreds of thousands of dollars will vaporize, and this is only one single lawsuit. Imagine what we are spending across the country every single year against innocent doctors and other defendants. Does this give you an idea where we might look for the health care dollars that we so desperately need?

11 comments:

Anonymous said...

Good luck.

Anonymous said...

If a doctor makes an honest mistake, I expect insurance to take care of the patient's medical needs. If a doctor is deliberatly or criminally negligent, they should lose their license and the future lawsuits are prevented.

It is time to discontinue encouraging the ambulance chasers among us with some serious limitations from sound tort reform.

Anonymous said...

"I admit that I am puzzled why I was called to serve humanity in this instance. "

How close is the statute of limitations? You were probably named because it was about to run.

"If a doctor makes an honest mistake, I expect insurance to take care of the patient's medical needs."

Your expectations and reality may not be in line.

Anonymous said...

Maybe you should consider standup comedy! Lynn

Michael Kirsch, M.D. said...

If Obamacare goes through, I may pursue this!

Anonymous said...

When you say "tort reform" I'm not sure what you mean. Do you mean caps on non-economic damages? If so, you're on a fool's errand. You'll get more thick envelopes in the mail than ever before because your med mal insurer will be more likely to settle a case that has some known liability limit than one that doesn't. The plaintiffs will know this, too.

But if you mean "loser pays" (the English Rule) when you say tort reform, then I'm with you. There are far fewer tort cases of all varieties in countries that adhere to the English Rule. The American Rule requires each party to pay their own attorney's expenses. This just provokes strategic, tactical, and unnecessary litigation.

Opponents of the English Rule say it would impede civil rights enforcement. This is a silly argument. Most civil rights statutes allow a prevailing plaintiff to recover litigation expenses. It would be simple to update those statutes to protect civil rights plaintiffs while exposing other plaintiffs to the English Rule.

To me, the real down side to the English Rule is that once a plaintiff grabs hold of you, he'll be far less inclined to let go because he'll owe you legal expenses. But I think the up side of less, yet more meritorious, litigation is worth that price.

Tim
tdmartin@elithic.com

Michael Kirsch, M.D. said...

Philosophically, I don't embrace caps as it would limit the recovery of those plaintiffs who truly deserved high compensation. I did support it, however, in Ohio when med mal premiums were becoming unaffordable. I saw many of my colleagues quit or move to another state. The caps were passed and the premiums have settled down. Another argument against loser pays is that lower income individuals may not be able to pursue a just claim because of financial risk. Working within the present tort sytem, I support a very effective filter to allow only cases that have a reasonable basis to proceed to pass through. Thinking more broadly, I think a much better system for compensating injured patients can be devised.

Anonymous said...

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from a previous comment:
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If a doctor makes an honest mistake, I expect insurance to take care of the patient's medical needs."

Your expectations and reality may not be in line.
----------------------------------------------
----------------------------------------------
I have long thought that this is the problem at the heart of most malpractice suits. The injured patient may have no way to pay for future needed care, never mind loss of income and medical debt already incurred. In the case of a death, surviving family members can also incur onerous debt (often due in part to income lost while caretaking); medical bills are the leading cause of bankruptcy. "Sixty-two percent of all bankruptcies filed in 2007 were linked to medical expenses" according to the American Journal of Medicine - and eighty percent of those filing had medical insurance!
http://voices.washingtonpost.com/health-care-reform/2009/06/new_study_shows_medical_bills.html

Medical malpractice tort reform should be a natural outgrowth of making our barbaric healthcare system more humane. Until this occurs, lawsuits against doctors and hospitals will likely continue to substitute for the social safety net lacking in this country.

Anonymous said...

"But if you mean "loser pays" (the English Rule) when you say tort reform, then I'm with you. There are far fewer tort cases of all varieties in countries that adhere to the English Rule."

We already have loser pays in almost every state. And the English rule has not produced the benefits you claim as often the plaintiff has no assets to collect from. The reason there are fewer tort cases in Western European countries is because you have a much deeper social safety net. You get in a car wreck there, you're not worried about paying for healthcare, and if you're unable to work the unemployment benefits are much more generous. The need is largely removed.

Anonymous said...

"I did support it, however, in Ohio when med mal premiums were becoming unaffordable. I saw many of my colleagues quit or move to another state. The caps were passed and the premiums have settled down."

Premiums "settled down" in both capped and non-capped states, basically in line with the overall market. Like they have during every "crisis" over the last thirty years. If you don't know what the difference in payouts and loss reserves was pre and post caps, then your thinking is too simplistic.

But if you believe we should limit the rights of patients simply to save docs a few dollars on their insurance premiums, why save your money on the backs of injured patients? Why not put caps on what insurance company employees earn? Wouldn't that be just as equitable, if not more?

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