This article describes some common misperceptions about medical malpractice cases, the lawyers that file them and the expert witnesses who participate in them. It is written from my perspective as an attorney for both the patients and health care providers.
Representing patients in medical malpractice cases has never been the path to easy riches it is portrayed to be in pro-tort reform writing. Pro-tort reform writers characterize the civil justice system as one of runaway juries doling out jackpot justice as tolerated by biased judges and plaintiff ’s attorneys who add fuel to this fire by unfairly pandering to juror emotion. Many reasons are used to justify making it harder to sue health care providers or to limit the compensation one can receive in negligence suits against them. The core justification underlying all these reasons is the need to curb the huge number of frivolous lawsuits being filed against physicians.
Any lawyer who represents patients in suits against doctors will tell you they turn down almost every potential claim they evaluate. These attorneys routinely accept less than 5 percent of the potential claims they are asked to accept. Any frivolous cases are rejected at this point. These lawyers also turn down many with merit because they are too time consuming and expensive to process.
Malpractice cases are almost always handled as contingent fee cases. The lawyer advances the expenses of bringing the case and is paid a fee only if the case results in recovery to the client. These cases take hundreds of hours of attorney time and the expenses advanced are often $30,000 or more if the case settles and twice that if it goes to trial. Anyone filing frivolous cases is engaging in financial suicide. It amounts to an interest free loan of uncertain duration to a client who can only pay it back if there is a recovery in the case. In the meantime, the lawyer spends several hundred hours working on the matter without knowing if any fee will be received for doing so. No one in their right mind would file large numbers of frivolous cases with those financial assumptions.
Before filing a lawsuit for medical negligence, the patient must have the case reviewed by a specialist in the same area of practice as the doctor to be sued. The reviewing doctor must provide an affidavit establishing that doctor’s credentials, a description of the care which should have been provided, the ways in which the care in fact provided was unacceptable and the ways in which the result would have been better if the doctor had done what was required. This is a time consuming and expensive process for the attorney who represents patients.
A patient has two years from when the malpractice takes place to file a lawsuit. Obtaining the records and having them reviewed by a specialist can cost several thousand dollars. The expense is advanced by the attorney and recovered, if at all, when the case is resolved by settlement, or by verdict, judgment and payment of the judgment. It amounts to an interest free loan, which is payable at an indefinite time in the future from a recovery that may or may not occur.
Many cases require expert testimony in multiple medical specialties. The first physician consulted may not always be someone who ends up being involved in the case from start to finish. Each expert consulted adds both time and expense to the lawsuit. In a perfect world with an uncomplicated one specialty case, it can take six months to obtain the necessary records, identify an appropriate and willing medical specialist and have the records reviewed.
That may seem like a long time to anyone who hasn’t participated in the process. It is a long time and reflects the unwillingness of the health care providers to participate in the process. Requiring this level of analysis and disclosure before the case is filed result in cases with merit being turned down because of the time constraints imposed.
Expert witnesses play a critical role in medical negligence cases. Some people describe these cases as battles of experts. The willingness of physicians to participate in medical malpractice cases is another factor that favors defendants. Doctors are much more willing to testify in defense of other physicians than they are to criticize another doctor. It is a foregone conclusion that a physician expert for a patient will practice in a state other than Arizona because it is rare for one local doctor to testify another local doctor failed to provide appropriate care. Criticizing another physician violates unstated rules of professional conduct. Doctors fear retaliation from other doctors. Specialists fear the loss of their practice if others stop referring patients to them. Until recently, this implicit threat was the primary way defendants discouraged others from testifying against them.
Recently, a new threat to doctors who testify on behalf of patients has developed. A made-up organization will demonstrate how these work. It will have an Orwellian name like the Coalition for Fair Medical Testimony. It will have a website with a laudatory mission statement and other pseudo-just language.
Despite the fair minded name, these groups work only with doctors and only against patients. They discourage doctors from consulting with patients and their attorneys. They only target witnesses for patients, not the witnesses who testify for doctor defendants. They intimidate physicians by threatening to have their opinions analyzed by experts retained by the group. They tell the physicians they intend to report them to their specialty certifying board if the organization believes that the testimony of the patient expert is not supportable by professional standards. Sometimes they work in cooperation with the defendant doctor and the doctor’s attorney to deliver this sort of message at the most strategically harmful moment for the patient. Maybe it is after no additional experts can be disclosed. Maybe it is shortly before trial. Regardless, it is done at a point in time when it will cause the most difficulty to the patient and the lawyer representing the patient if their retained expert decides not continue to work in that capacity.
These professional associations are responsible for certifying doctors as specialists in their area of practice. Without certification from one of these specialty groups, physicians are unable to admit patients to hospitals. They are unable to bill Medicare or other insurers for their services. In short, without the certificate of these organizations, doctors lose their ability to practice medicine.
The risk of losing the certification means the end of their career. The cost of responding to criticism, whether founded, unfounded or otherwise, is potentially staggering. These organizations correctly recognize that very few physicians will want to risk the consequences of testifying if their careers are at stake.
I have handled medical negligence cases for over 35 years. Over that time, they have become harder to prove, harder to win and the number of traps for the unwary has increased. In 18 years, I almost never defended a claim I thought was frivolous. As a lawyer for patients, I turn down cases I think have merit, but I don’t file any I don’t believe are legitimate. My experience is no different than what my colleagues describe. I offer these observations in hopes that people reading this will understand there is another way to view medical negligence. Barry E. Lewin
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