Whistleblower readers know my views on the medical liability system. I have devoted more posts to tort reform than to any other issue. Readers, whose blood pressures are adequately controlled, are invited to review those posts on this blog under the Legal Quality category. (I was tempted to name the category Legal Abuse, but wanted to keep the category names consistent.)
I review many legal blogs, most of which are ideological rants against physicians that express steadfast fidelity to the current system. If the medical community were as united and focused as the trial lawyers are, our future would be more sanguine.
Gerald Oginsky is a plaintiff’s attorney who sues physicians. I have never met him and he has never sued me. Gerry left a comment on one of my Legal Quality posts, which demonstrated fairness and reasonableness. This lured me to his blog, where these same two qualities are evident.
For this week’s Whistleblower, I am sharing a recent posting from Gerry’s blog. While the substance is not breaking news, it is unique as it is authored by an attorney who sues physicians. It is refreshing to dialogue with a lawyer who can express views and understanding beyond his own parochial interest.
With his permission, here is his post.
With all the talk about health reform today, and proposed 'tort reform' by Republicans together with sensationalized lawsuits in the newspaper today, it's no wonder that many people think that they're "Entitled" to money just because they had a bad outcome.
Our society is conditioned to think, rightfully so, that if they've been wronged, then they have a right to go to court and obtain compensation from the person or company that caused them harm.
When it comes to medical malpractice lawsuits in New York, do you really think that your doctor woke up that morning and said to himself (or herself) "Who can I injure today?" Unlikely. Instead, what we experienced lawyers regard as a departure from good medical practice, may, in the mind of a physician be simply a bad judgment for which a patient had a poor outcome.
Remember, not every bad outcome represents malpractice. I often tell potential clients when they call that "Just because you suffered a complication or a bad outcome, does not necessarily mean that you have a valid case. You may, but you need to know how an experienced lawyer evaluates a case like yours."
Many people who call an attorney automatically think that because the doctor had a bad bedside manner, or the patient is now worse off than when they had the treatment, then something must have been done wrong. That type of thinking is often not accurate.
Also, contrary to popular belief, the majority of good medical malpractice lawyers refuse to take most cases because either they lack merit, or the damages (injuries) the patient suffered is not significant. Our role has been described as a gatekeeper, keeping out most cases that do not belong in the legal system.
Do some cases get through that should not? Yes. Do some over-zealous attorneys take on a case that should not be brought? Yes. But this extremely small percentage is statistically insignificant and the jury system works in those cases by discarding those that lack merit, and rewarding compensation to those that rightfully deserve it.