Sunday, January 10, 2010

Tort Reform: A Plaintiff’s Lawyer’s View

ScalesCA2C09S1 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.

23 comments:

Anonymous said...

If one has even a basic understanding of the economics of a plaintiff's practice, this is not news.

The problem for physicians is the process of their actions being judged. They tend to agree that malpractice should be compensated, but they inevitably complain about the misery, strain, etc. of the process. And really, no matter what system (short of them judging themselves) one comes up with, this will be their complaint. And really, even if they judged themselves they wouldn't be entirely happy - many complain about the state medical board's review of their actions.

In short, you can guarantee insurer profits all you want with "caps", but what physicians are really after is immunity from the process.

Michael Kirsch, M.D. said...

Respectfully, I disagree. Physicians do not want immunity. Most of us would trade caps on non-economic damages, which we have in Ohio, for an effective screening mechanism at the front end to screen out physicians who should not be on the case. I am extremely confident that this could be devised, but supporters of the current medical liability system are entrenched. I think that physicians would be flexible as we share the objective of plaintiffs attorneys of compensating victims of true medical negligence. We're not aiming to change the objective, only the clumsy tactics that are the current tools of the trade.

Chuck Pilcher MD FACEP said...

I do medical case review part-time for both plaintiff and defense attorneys, and I agree that Gerry Oginski's blog is a refreshing source of reason. And I'm sure he still makes a decent living. If he takes one's case, I would not want to be the defendant.

A. Bailey said...

There's way too much money at stake for the legal profession to have any inclination to clean up their act.

Annie said...

Hi,
My name is Annie Smith and I am the assistant editor of Medicalschool.org. I am contacting you today in hopes of developing a relationship with your website; we have seen your site and think your content is great. Medicalschool.org is a purely informational site dedicated to the general Public.

I hope you show some interest in building relationship, please contact me at annie.medicalschool.org@gmail.com.

James said...

I posted a proposed solution to the malpractice issue on the Pharmalittle site.
My recommendations were made in conversation with another Blogger, Justice in Michigan.
basically my recommendation is to use an Alternative Dispute Process for the settlement of malpractice claims. Interestingly enough the Republicans made a similar suggestion in their Healthcare Reform Plan.

If you are interested the posts begin near the middle of the comments entry.

James

http://pharmalittle.blogspot.com/2009/09/enlighten-people.html#comments

Michael Kirsch, M.D. said...

Annie, I tried to get in touch with you, but your contact information is not accurate. Try again!

Anonymous said...

"Most of us would trade caps on non-economic damages, which we have in Ohio, for an effective screening mechanism at the front end to screen out physicians who should not be on the case"

Of course you would trade caps. Caps have little effect on you or your bottom line. They benefit only your carrier, no one else.

As for "effective screening mechanism", there is nothing preventing a physician from giving a deposition pre-suit. How else would you propose we screen without gathering the information through written questions and then by examining the parties under oath in depositions? Do you know any physicians who will do this prior to suit being filed? I don't. So you're claim about how you'd love to trade screwing the most vulnerable with caps falls a little flat, doc.

" I think that physicians would be flexible as we share the objective of plaintiffs attorneys of compensating victims of true medical negligence. "

If you share this objective, why do all the legislative proposals you back focus solely on capping the damages of those who are adjudged to have a legitimate case? You, and the real party behind this, your carriers, have no interest whatsoever in making sure more people get compensated quickly. You may like to SAY you do, but your actions speak much louder than your words.

If you mean what you say, let's see something that is designed to pay more people faster, that doesn't result in physicians judging their own, and doesn't have insurance lobbyist caps as its centerpiece, get some backing from physicians and their lobbyists. Until then, you're being disingenuous at best in your claim of caring for the victims of malpractice.

Michael Kirsch, M.D. said...

To the commenter who prefers to opine anonymously, kindly address these points.

(1) Most physicians who are brought into the medical liability forum are released at some point. In other words, the net is too wide.
(2) Most patients who are victims of true medical negligence are never captured by the system. In other words, the current system performs poorly.

I look forward to your response and if you can identify any flaws in the current system worth examining.

Anonymous said...

I agree with you as to both. Where we disagree is over the "solutions" that you and most physicians have supported. Namely caps on damages regardless of the liability of the actor or the harm caused. Or having physicians judge their own.

I also think your point 1 is poorly written. There is no specific "medical liability forum" and everyone who goes through a civil lawsuit is eventually out of it.

The identification of what you deem "flaws" is easy. Solutions are the difficult thing.

Incidentally, with respect to your statement:
"I review many legal blogs, most of which are ideological rants against physicians that express steadfast fidelity to the current system."

This would seem to apply equally to physician blogs, or is there a wide disparity of opinion on legal matters among physicians that readers are missing?

Michael Kirsch, M.D. said...

To my anonymous commenter, a few retorts.

(1) I do not feel that caps are ideal. I would prefer they not exist, if there was a filter that would screen out potential defendants that should not be sued. While some instances require the discovery process to establish innocence, in many examples, a cursory review of the record is sufficent to exclude a physician at the outset. This would have been true in every case I was involved in.
(2) You did not address my 2nd point in my prior comment. Perhaps, you will do so now with specificity
(3)With regard to your comment on physician blog, have you read this one? Many posts take my own profession to task and I have taken heat for it. Nevertheless, I acknowledge your point.
(4)Signing a post or a comment enhances credibility. I'm okay with your anonymous status, but feel free to ID yourself.
(5) Thanks for your comments and your views.

Anonymous said...

1. If you don't feel caps are "ideal", why support them. Particularly when they don't address any of your stated goals. As to the "cursory review", would it surprise you that records are often incomplete and occasionally falsified? Or that if you did not name all parties and the statute of limitations ran prior to pinning everyone's story down, that a defendant might try and shift the blame to another party who could not then be brought in to the case? Perhaps a longer statute of limitations would solve this problem. Most states have the relatively short 2 year statute for med mal.

2. Your second point is somewhat of a red herring, as you're criticizing the system for doing something it's not designed to do - ie actively seek claims. The justice system adjudicates claims brought to it, but we do not have judges or lawyers out there reviewing records looking for claims. The closest we come are some advertising lawyers, but physicians roundly criticize that. Are you advocating we have an actor out there that reviews all records for instances of malpractice? I doubt you'll get much of a following among your colleagues, or your insurers, for that.

3. I have read what you wrote. I enjoy it very much. But I'm speaking as a whole.

4. I don't know that it does. Either the ideas have merit or they don't.

5. Thanks for the forum.

Michael Kirsch, M.D. said...

I supported caps in Ohio, even though they are not an ideal solution, as there was no other remedy available to us. I dispute your 'red herring' comment. Hypothetically speaking, if there are 100 cases of medical negligence with damages, and only 5% are captured and compensated by the current system, then we need a new system. If we prescribed a medication for high blood pressure that only worked in 5% of patients, we would opt for a new treatment. With regard to your point that a 'cursory review' may not be sufficient, I agree. My point is that it is often sufficient and in these instances,the physicians should not be targeted. Right now, the default mode is to sue first and ask questions later. I think it's better to spend a half hour of record review to exclude an innocent physician, than to keep the doctor on the hook for months or years, with the same ultimate outcome.

Anonymous said...

"I supported caps in Ohio, even though they are not an ideal solution, as there was no other remedy available to us."

Remedy for what? Caps don't solve any of your criticisms. It's an insurer profit protection measure, nothing more.

" Hypothetically speaking, if there are 100 cases of medical negligence with damages, and only 5% are captured and compensated by the current system, then we need a new system."

Then by all means propose one. So far, the only legislative proposal that has any traction is caps. You'll say health courts, but those have caps.

The reason we have no other legislative proposals? Because at the end of the day the insurers, and physicians for that matter, are not really interested in having MORE claims. They don't want that 95% captured and compensated.

" My point is that it is often sufficient and in these instances,the physicians should not be targeted."

How often?

"Right now, the default mode is to sue first and ask questions later."

Of course it is. Do you know a physicians who will answer questions under oath without a lawsuit being filed and being compelled to do so?

As to spending the half hour of record review, are records never altered? Are fingers never pointed from one physician to another? Are you willing to extend the statute of limitations to say, 4 years? That might easily solve your complaint. But again, caps is all you've offered. It's hard to take your criticisms seriously when your industry only has one "solution".

Crazy Politico said...

First, a medical arbitration panel, made up of GP and specialty physicians, along with patient advocates would be a step in the right direction to weed out poor malpractice claims. Allow appeal of the decision in the courts if the patient is unhappy with the outcome.
This saves time and money.

Second, since the government thinks it is okay to limit bankers pay, why not limit what lawyers can receive in fees on such cases. That would weed out the poor attorneys who are looking for the jackpot case. The one's that actually care about people, not just a 33% cut after the settlement would stick around.

Anonymous said...

"First, a medical arbitration panel, made up of GP and specialty physicians, along with patient advocates would be a step in the right direction to weed out poor malpractice claim."

That's fine, but let's let every industry have this if we're going to let physicians do this. For example, if an insurance company is sued, then a panel of insurance execs get to be the jury. Fair enough?

"This saves time and money."

How so? All of those people will want to be compensated for their time. There will still have to be people gathering the evidence. And you're creating a whole other system paid for by the state when we already have a system to adjudicate disputes.

"Second, since the government thinks it is okay to limit bankers pay, why not limit what lawyers can receive in fees on such cases."

The bankers asked for the government's money (much like physicians) so they signed on to the government's restrictions. Have plaintiff's lawyers? No. Poor comparison.

But if you're interested in fairness, why would you limit just what the plaintiff's attorneys can pay their lawyers? How come limiting lawyer's pay never applies to the insurance lawyers defending the case? Fairness again? Why don't we just let the government decide how much EVERYONE should make if that's your position.

And how does paying lawyers less weed out the "poor" ones? Particularly if you only cap one side's pay.

crazypolitico said...

Anon, lawyers already have such a system for malpractice. Have a complaint against your lawyer, it doesn't start in court, it goes to the local Bar first. Guess what the bar is made up of, LAWYERS!

Why shouldn't insurer's lawyers be limited in pay? Most are by the fact that they don't work on contingency fees like plaintiff lawyers. 90% are on staff with the insurers because they spend so much time defending malpractice suits for them.

As for limiting bankers pay, I'd suggest you read up on the legislation guys like Barney Frank are proposing. It wouldn't just limit banker who took TARP money could make, he'd like it applied to all.

As for why would limiting contingency fees weed out bad lawyers. I'm not sure where you live, but here in Illinois, a "lawsuit friendly" state we have a ton of lawyers who's only business is chasing ambulances. We've got two or three counties in the south of the state where cities with only 2-3,000 people have 10-12 law firms. Tell me why they exist, other than they are friendly areas to file malpractice suits.

Anonymous said...

"Have a complaint against your lawyer, it doesn't start in court, it goes to the local Bar first"

This is incorrect. The bar association is a voluntary organization, one you do not need to belong to. The State Supreme Court can sanction an attorney, but an aggrieved client does not need to go there first, or at all, to pursue a civil claim.

"Most are by the fact that they don't work on contingency fees like plaintiff lawyers. "

They're not limited in the least by that fact. They can negotiate whatever terms they want with the insurer. There is no statute to the contrary.

"90% are on staff with the insurers because they spend so much time defending malpractice suits for them."

Also incorrect. Most lawyers who defend malpractice claims do so on contract with the insurers, and are not employees. Some insurance companies do employ attorneys in house for that, but typically not because of the inherent conflict between the insured and the company. Most of your inhouse lawyers at insurance companies deal with coverage issues.

"As for limiting bankers pay, I'd suggest you read up on the legislation guys like Barney Frank are proposing."

I actually have, and proposed is not the same as enacted. Either way, it's a bad idea.

"I'm not sure where you live, but here in Illinois, a "lawsuit friendly" state we have a ton of lawyers who's only business is chasing ambulances."

Not sure how you define "lawsuit friendly" so hard to address that claim. I don't know what cities you're speaking of so it's hard to say. Care to elaborate?

It seems many of your conclusions arise from guesses and assumptions. Before you make too many hard conclusions, I'd suggest a little more research.

Penigma said...

Dr. Kirsh,

Caps will do nothing to protect or help defendents who should not be sued because the award will be beneath the cap. If, however, you are attempting to suggest that it will save the legal cost of fighting it, and as such then will result in non-payment of nuisance (sic) suits, we might agree, but this common practice is not the driving force behind malpractice costs, but rather poor investment practice by the carrier - and regardless, it is the carrier, not the physician who is saved in that case, saved from the legal expense. The physician is only saved from the time involved to be deposed.

Lastly, and more importantly, when the AMA and doctors at large finally relent and allow for a true policing body to be formed, then you'll get more support from the community at large. It is currently virtually impossible to strip an incompetent physician of his/her license to practice because doctors are self-regulating. Your insulation of your brethren (and sisteren?) does not do you credit. A board review, like a bar association, certainly COULD exist, and even be used as part of the arbitration process in determining loss as long as the findings were deemed objective on a larger scale. Such boards only notionally exist now, oh, you can get a doctor reviewed, but it's usually private, usually perfunctory and usually useless.

Lastly, your post quotes someone who, in the end comments that while there ARE frivolous cases, they are infrequent at best because filing them puts the attorney involved in some risk (of censure or worse). Such a comment suggests that the cases of 'cases where the defendent should have been sued' are infrequent, so you already have what YOU want - and given that - I assume you are ready to drop your support of caps?

respects - Pen

Penigma said...

sorry, two lastly's :)

Michael Kirsch, M.D. said...

Here's the latest on medical liability from the Land of Lincoln. http://nyti.ms/9sTIC1

Pascal Fervor said...

Hi Doc,

Some lay people are restless, as is their right before our "public servants" fully morph into autocratic rulers.

You might want to take a look.

Mike said...

The reason most physicians feel that the tort system is unfair, is because they have a completely different view of what defines "malpractice." The vast majority of lawsuits experienced by physician acquaintances and partners of mine have involved poor outcomes either through random uncertainty, or from a prospective decision without all the information needed to make the "right" decision. These patients for the most part had pre-existing illnesses which the physician tried to help or ameliorate, and most physicians that I know do not believe that retrospective outcomes do not fit the same definition of negligence as other types of liability law. Hence the desire to have other ways of assessing physician performance in these situations, such as in Canada and the UK

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