Medical Malpractice

By: Attorney Andrew M. Rockman

A recent article in the Wall Street Journal underlines the risk we face when opinions are based upon misstatement of fact supplied under the guise of unbiased opinion, in what has become a highly polarized and jaundiced media that seeks to sell its product, opinion and proselytizing, as if it were news.

In the article, a professor of law supposedly reports on what is wrong with our medical malpractice dispute resolution system. Startlingly inaccurate generalizations are offered as if they provide wise justification for the criticisms being leveled.

Totally without proof or substantiation, the law professor offers as fact that jury trials contribute to the driving up of medical malpractice costs, since they “can veer out of control”. Reality is that he is wrong and speaks from ignorance and failure to analyze verdicts on their merits rather than news headlines and the opinions of the uninformed. More to the point, medical malpractice verdicts are subject to judicial scrutiny for determining if they are supported by the evidence.

What gets lost is the protection the jury system provides to the financially compromised victims and their ability to have their cases heard on the merits, by fellow citizens, as opposed to judges. Conversations with experienced judges will most often reveal their belief that justice is better served by a jury, rather than a judge who has developed a bias through over exposure, or is under administrative pressure to “move” cases even when it may be contrary to the interests of the parties.

The suggestion of jury replacement with specialized commissions is easy to put out without any consideration of the makeup, structure and protection against error. It also disregards that the doctors, through their insurance carriers, have shown no willingness to be deprived of the protection of a jury trial.

A doctor within geographical reach of members of his or her profession in a locale is simply not likely ever to blow the whistle of truthful criticism against a fellow practitioner, at minimum for fear of retribution, like treatment, or loss of referrals. That is an historic problem faced by all injured patients.

Decisions by committee are fraught with danger for the litigants, as the composition of that committee is pivotal to the integrity of such a system. As with any decision making body, the litigants must be protected from erroneous or unfounded decision making, by availability of appeal. The professor asks, naively, for the parties to voluntarily give up the right to a jury trial. Interesting coming from a supposed student of the law, our judicial system, and historic rights to a jury of fellow citizens.

It is not the medical profession and its insurance carriers who lack for representation, defenses, and ways to press their views of what medicine should have required of them rather than what it actually required. It is the injured plaintiff that faces all the proof and evidentiary hurdles that the ill informed and seemingly biased professor ignores.

The law professor slams the contingency fee system and “well healed” lawyers who “self finance” litigation, as the creators of the problems facing the system. He neglects to point out that the defense in any malpractice dispute is comprised of the corporate insurance carriers and the doctors, far better healed and able to finance litigation in a way no lawyer or injured plaintiff can match. But that seems not to trouble the professor. What troubles him is the mythical availability of numerous wealthy attorneys to finance frivolous litigation their injured patient/client cannot.

The reality that is unspoken is that it is a fool who risks his own resources in contingency fee litigation, where he/she is not paid and not reimbursed unless and until he /she wins for his/her injured client. There is no pot of gold. There is a pot of risk. Our system has developed out of the wise recognition that the injured ought to have access to effective counsel, just as the wealthy insurance carrier does. That attorney then has the task of deciding if the merits of the case against the doctor, justify a willingness to help the injured plaintiff by advancing finances and time to enable the injured patient the opportunity to have his or her case heard in a climate that overwhelmingly results in defense verdicts.

Since the individual can in not finance litigation in a way that can compete with the ability of the insurance company to finance the defense, the good, wise and unbiased professor would remove the individual’s ability to obtain redress, when a medical professional has been proven to have wronged and injured him or her.

Then the professor criticizes the rule that requires each side to self finance the litigation. All businesses have costs, but it is only the individual injured patient who would be bullied with the threat of paying both sides costs if the patient /client loses. This is nothing less than a scare tactic, threatening the injured individual if he or she dares legally question the propriety of the care provided. It totally disregards any concept of good faith disagreements that are to be resolved with intervention of the judicial system. His position also ignores the concept of frivolous lawsuits that already exists as a tool when the system is misused.

Then the professor scoffs at the availability of extensive pretrial discovery. His position is arrogant and disingenuous. The doctor has untrammeled access to the facts and the experts. He or she was the one who committed the medical malpractice and has access to witnesses, control over records that describe conduct and events and untrammeled access to the participants in the negligent care. The injured patient? He or she has his injury, or the death or injury to a loved one, but little else, other than what the wisdom of a discovery system allows him or her to uncover what happened.

The comment that judges “frequently let juries decide whether honest mistakes are negligent” is absurd, coming from a law professor. Clearly, medical malpractice can stem from the honest but incorrect belief as to how or when to try a procedure or order a test. It is the standard of care controlling the delivery of acceptable and appropriate medicine that determines whether the mistake, honest or otherwise, constituted medical malpractice, outside or below the recognized parameters or standards the doctor is expected to know and follow.

It is when the doctor goes through a medical “red light” and causes injury, that he or she is responsible. “Honest mistake” is a loaded phrase used by a person with either an agenda or ignorance about the subject, to induce the supportive reaction he is seeking.

The professor disregards the charge or description of the law given to every malpractice jury: the specific mandate that they must not and cannot infer negligence from the mere occurrence of an injury.

The law professor’s carelessness in research, understanding and reportage calls into question our ability to accept opinions and “facts” from “learned “sources. It is what leads countries and people down the wrong path and away from fairness, understanding and just results.

Where the professor got the idea that medical malpractice plaintiffs are spared the burden of identifying particular negligent acts or of showing the causal connection between a negligent act and the actual injury, is puzzling. It does not come from the law or actuality. It raises the question as to whether he has been in a courtroom or spoken to experienced trial attorneys or judges. This allegation of a lack of the need to prove causal connection is a fiction whose intent is to mislead and misinform.

Arbitration and waiving of jury trials has the sound of wisdom, but it is the carriers that most often reject that approach. Arbitrary limits to damage recoveries takes honest evaluation of the impact of what is often catastrophic, life changing injury away from those our system has long recognized are best to evaluate it.

Carriers are a business designed to make profits from accepting risk and premiums, investing them, and minimizing or eradicating their responsibility to deliver their product: payment of damages determined to be caused by the doctor client who paid them to do so.

Those who represent the injured individual are most often rebuffed in their efforts at simpler dispute resolution. It is the insurance industry that so often avoids early discussion and settlement, doing what they can to prolong avoidance of responsibility, make the process more expensive and risky for the already injured, and settlement too large an impact on the premiums the doctors must pay for the product the carrier is selling.

Medical malpractice litigation is anything but a giveaway to the injured patient. It is most often an expensive hurdle race, where the plaintiff must jump over every hurdle, from finding effective counsel, willing to accept the financial risks of a process that only the defendants can afford, to the myriad financial and evidential hurdles the injured faces in arguing a case in the medical language of the medical defendant, in a forum where so many risks to victory are in play, regardless of the clarity of the medical issues.

It is not the injured plaintiffs who resist simplification through arbitration, mediation or early settlement, based on good faith recognition of obvious medical mistakes. The medical industry has to recognize and accept those clear cases of medical error that deserve early recognition and resolution, rather than hunting and hoping for excuses and mistakes that might lead to the defeat of a meritorious claim. This would contribute greatly to cost savings, certainty, and quicker resolution in cases where the standards of care and causation are truly in dispute.

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