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Thursday, August 1, 2013

Lawsuits. More specifically, medical malpractice...

Lawsuits are a necessity.  Someone reading this would probably say "I bet you think that because you are an attorney."  But, that is not at all the case.  Lawsuits are another form of checks and balances.  It keeps individuals and corporations alike in line.  It also keeps lawyers in line.  And, most importantly, it keeps people safe.

Contrary to what corporate funded commercials would have you believe, the filing of frivolous suits is a complete rarity.  A filing of a frivolous suit can subject the lawyer who signed the Complaint to severe penalties.  Simply put, it is not worth the risk- both financial and to the lawyer's reputation.

But more to the point, there should never be a risk because why would a lawyer who swore to uphold ethical considerations ever file a frivolous suit?  (I know, I know, people choose to do wrong things).

Me personally, the risk of being sanctioned for filing a frivolous suit is 0% because I simply do not accept those cases from the beginning.  I tell those callers to take a hike and do not bother calling any other attorney to help you.  I value my reputation in the community and among other lawyers.

(Funny side note- I did have a potential call and say he found a bone in his soda.  He wanted to sue.  I asked if he had any injuries and how he knew a bone had been in his soda.  He told me he could see it through the bottle and it was still in there.  I said, no injuries, no case, see you later.  He called back a day later saying he swallowed a bone while drinking a soda and he was injured.  Wonder what ever happened to that guy).

Which brings me to medical malpractice lawsuits.  These suits get labeled frivolous the most and are often used as an example of why every state needs "tort reform."  (I think I wrote about tort reform in early postings, but I do not need to re-hash things now.  The very idea of tort reform makes me sick and gives me enough material to write about that subject whenever I feel like it).

Why is this so?  Well, doctors and medical care is a huge business in America.  Doctors, pharma companies that sell medicines through doctors and medical centers have a lot at stake, and a lot of money to lobby with for protections from lawsuits.

They are also able to create a lot of "junk science" reports, studies, etc., when they need to create some sort of defense to injured peoples' claims.  (For example, it is clear that brachial plexus injuries (which can leave the arm anywhere from somewhat functional to paralysis) are caused by a physicians force during labor.  So, a study was complied, "Lerner Study," to "show" that a mother's own contraction can be enough force during labor, absent force from a doctor, to cause a brachial plexus injury.  Now, defense doctors use this "study" to defend when a doctor has used to much forced and injured an infant.  Funny enough, while the doctor which the study is based on said baby was delivered without physician force and a brachial plexus injury occurred anyway, doctor's own notes indicate she used force during delivery.  The medical malpractice lawsuit against her settled just before trial).

But this all gets me to something interesting I came across on Medscape.  They conducted a study/poll of 3,480 U.S. physicians across 25 areas of practice on what the experience of being sued for medical malpractice is like.  40% of those surveyed, or 1,392 doctors, had been sued.

Most striking to me was the outcome to the question "Was the lawsuit result fair?"  62% of those doctors sued (835.2 doctors) believed that the lawsuit result was FAIR.  (I presume in my analysis that only doctors who have been sued answered all the survey questions.  The study was not explicitly clear on this, but it would only make sense).  Only 38% thought the result was unfair.

One doctor was quoted as saying that it was "my responsibility.  Parents had to sue to get financial relief for the burden of caring for their infant.  I understood that."

Now, the poll did relate that only 47% of malpractice cases ended with the plaintiff being awarded money compensation, whether through jury or settlement and that 35% of cases settled before trial, with only 2% of cases resulting in a jury awarding money to a plaintiff, but poll does not state what portion of the 62% that said result was fair was an award or settlement for the plaintiff.  However, I would presume that since 37% of the cases resulted in compensation for the plaintiff, that more than half of those doctors who thought it was a fair result had an award or settlement against them.

But for me, the biggest point is that even if a doctor settled or had a jury decide the doctor was negligent, some doctors still accepted that as a fair result.  One doctor went so far as to be quoted that he understood why he was being sued and accepted that.  He may not have agreed with the suit, but he understood why it was occurring and why it was necessary for the plaintiff to bring a lawsuit.

I am happy to see these numbers.  A decision to sue a doctor is never taken lightly and never done without a thorough review of the records.  In my practice, I decline medical malpractice cases way more than accept them, almost exclusively based on the fact that no doctor or nurse did anything wrong.  If we accept such a case, it is with a 100% belief, and knowledge, that medical malpractice occurred.

Also interesting were the results of the "Long-term Emotional and Financial Effects of the lawsuit."  63% had none.  The next biggest category is that 29% of doctors no longer trust their patients and treat them differently.  Only 6% left the practice setting.  However, if "Emotional" was not part of this poll, I firmly believe 94% (thus excluding the 6% that left the practice setting) would have answered "none" to long-term financial effects.

Why is that?  One, doctors have insurance, and insurance providers foot the bill and pay any award or settlement. (Same as if you had car insurance and caused an accident and injured someone).  No money out of the doctor's pocket.  Second, patients rarely look or rarely know that a doctor they are seeing has been or is being sued.  It is rarely reported in the news, as it is not that interesting.  Also, unless there is a jury trial (very rare) and the plaintiff wins (even more rare), the record simply shows that the matter was dismissed, regardless of whether the plaintiff was paid something or not.  So, a lawsuit has no effect on the doctor's business.

What I take from all of this is that even doctors recognize that most medical malpractice lawsuits are not frivolous and are a necessity for injured people to obtain compensation they need to care for themselves for the injuries they sustained.

Just like counting to make sure all instruments are accounted for before sewing someone back up after surgery, lawsuits act as a system of checks and balances to help keep patients safer.