Day on Torts
Fifty months ago "Steven" and I had an ongoing debate about a post I wrote about the John Ritter case. I have repeated it below:
Steven and I have been having a discussion – it started here. Here is his latest missive:
"My mistake, I did not mean to state that this particular lawyer(s) was sleazy, but that the trial bar in general is sleazy. I will admit that there must be some decent trial attorneys just as there are bad doctors, cops, judges, etc.
As for your comment about doctors and EtOH, drugs, etc., it is true that many docs have problems, but experts and studies have shown that the last thing in their life they let go is often their career. This is probably true for most professions as well. Plus, I would never call someone with a disease sleazy, that would be "shallow."
As for the specifics of the case, no one on this board knows them. I read in two different papers, two different diagnosis. However, both are extremely deadly and difficult to treat. I would be inclined to give the physicians the benefit of the doubt. I know it may be difficult for you to understand, but physicians try to save/help EVERYONE. When a physician fails they must live with that the rest of their life.
In addition, this was settled out of court. So we will never know if anyone was at fault or if they settled to avoid the bad PR from a trail.
Unfortunately, everyone dies at some point, so physicians are guaranteed to fail.
The fact is that most attorneys get a size-able chunk of change for representing these kinds of cases. They would not do it if there were no financial incentive.
Every surgeon I know has been sued, none have lost. Most of these cases are ridicules. Now would you argue that all of these surgeons are incompetent or deserved to be sued? The facts are simple, that malpractice awards have been surging at the same time rates have been going up. If you don’t believe me check out the congressional budget office.
Finally, There is a legal jackpot system in this country, where physicians are forced to be judged by a non-medically trained jury with the fortune of hind-sight."
My response:
1. "My mistake, I did not mean to state that this particular lawyer(s) was sleazy, but that the trial bar in general is sleazy. I will admit that there must be some decent trial attorneys just as there are bad doctors, cops, judges, etc." Steven, I have got to hand it to you. After being called to task for your assine comment that a lawyer you don’t know and can’t even name is sleazy you apologize (very good manners) and then call 100,000+ lawyers in the trial bar sleazy. Very smooth, Steven – you are a real Dale Carnegie.
Seriously, I am somewhat surprised by your position. Given your writing style and the language used in your posts I assume that you are a physician. Someone with enough intellectual capacity to attend graduate school would ordinarily require some factual basis before making such a statement. You should know that making such statements reveal either (a) a deep prejudice that undermines whatever good arguments you are able to make in support of your position or (b) an intellectual shallowness that causes reasonable people to question every other statement you make. Really, Steven, if you want to debate these issues you can do better than that.
Oh, yes, it did not escape me that you reluctantly concede that there "must" be some trial lawyers that are "decent just as there are bad doctors…." Let me boil that down: Doctors good, trial lawyers bad. Exceptions to both rules. Your bias is palpable.
2. "I would be inclined to give the physicians the benefit of the doubt." No kidding. That is my point. You don’t know the facts. You admit you don’t even know the ultimate diagnosis. But you conclude in your earlier post that the lawsuit has no merit. One struggle I have with many doctors is their scientific training makes it challenging for them to accept assumptions. I understand this – when one is trained to have to rely on demonstrated facts before taking action it is often difficult to accept assumed facts as true. But you (and, in my experience, many of your colleagues in the health care industry) have no problem assuming that a malpractice case is "frivolous" without knowing anything about the facts.
You know what Steven? I give doctors the benefit of the doubt every day. I turn down at least 10 potential medical malpractice cases a week. Most of them involve significant injuries. But I look at the facts and determine that they have no merit or that potential merit is too questionable to justify bringing the claim. I never said that John Ritter’s case had merit – I don’t know the facts. I simply reported on the fact that a settlement was reported in the press.
3. "In addition, this was settled out of court. So we will never know if anyone was at fault or if they settled to avoid the bad PR from a trail." Or even a trial. True, we won’t know why this case was settled. My point is that you offered an opinion on the merits without knowing the facts. Also, we have no idea whether "PR" played any role in settling the case. There would have not been bad PR if the case had been won – the case would have been used as "yet another example of greedy trial lawyers trying to play on the sympathy of a jury to extort money from a hard-working doctors, etc." Someone representing the hospital, the doctors, or all of them decided after consideration of all relevant factors to resolve the case in some fashion. I don’t know anymore about the settlement than that, and neither do you.
4. "I know it may be difficult for you to understand, but physicians try to save/help EVERYONE." No, Steven, that is not difficult for me to understand because I don’t believe physicians are bad people. I believe that the vast majority of physicians are good people. I believe that the vast majority of people are good people. I would expect that good people try their best to avoid injury and harm, and that if you happen to be a health care provider you try to save lives. Everyday.
What all too many health care providers fail to understand is that lawyers who do what I do don’t dislike them – we simply want to help our clients hold them accountable when they make errors below the standard of care that cause harm. Trial lawyers believe in accountability. Do you have a problem with that, Steven? Do you think people should be accountable for what they do?
5. "Unfortunately, everyone dies at some point, so physicians are guaranteed to fail." What does this mean? Are you suggesting that every time someone dies that the public deems that a failure? Or that you do? Death does not necessarily represent a failure by health care providers, and you know it. And the public knows it. It sounds to me like you are making a woe-is-me argument, and it is beneath you.
And don’t suggest that everytime someone dies people (including lawyers) think that malpractice occurred. That is ridiculous.
6. "The fact is that most attorneys get a size-able chunk of change for representing these kinds of cases. They would not do it if there were no financial incentive." Let me let you in on a secret, Steven. Most people get paid for their labor. My guess is that you do. Are you suggesting that there is something wrong with getting paid for professional services?
Lawyers who represent patients get paid for what they do – if they win. I am proud that our profession has a contingent fee system in place that will allow people access to the courthouse without paying money out-of-pocket to fund the litigation. I have offered every personal injury client I have had for over two decades the option of paying by the hour – and only two families have elected to do so. Even most of the wealthy people I have represented prefer a contingent fee. My clients make an informed choice and, if they choose a contingent fee, I accept the risk of working and not getting paid for my effort.
7. "Every surgeon I know has been sued, none have lost. Most of these cases are ridicules. Now would you argue that all of these surgeons are incompetent or deserved to be sued?" I don’t know that any of them deserved to be sued – I don’t know the facts of any of the cases and cannot comment. I certainly don’t believe that all of them are incompetent – we have a fundamental disagreement here. You believe that if someone is sued it is an allegation that he or she is incompetent. It is not. The person may be incompetent, but I have sued only one doctor in 25 years who I thought was truly incompetent. The other health care providers I have sued over 25 years were not incompetent – they made errors that cost people their lives or caused them a serious injury. I think they should be held responsible for the harm they cause. Don’t you?
I think some – perhaps more than some – health care providers think that they should not be sued when they violate their own standard of care because health care providers deserve special treatment because of all the good they ordinarily do. I disagree – I don’t think anyone deserves special treatment. Do you think you deserve special treatment, Steven? What about a truck driver that crosses the center line and kills a carload of people? Does he or she deserve special treatment? What if he or she has driven 2,000,000 miles without a fender bender or a speeding ticket? Should he or she get a break when they wipe out a family? What if they deliver medical supplies? Or food? Should they get a break for that? I don’t think so.
8. "If you don’t believe me check out the congressional budget office." OK. Here are some quotes from the report you mention:
"Several studies have found that various types of restrictions on malpractice liability can indeed reduce total awards and thereby lead to lower premiums for malpractice insurance. By themselves, however, such changes do not affect economic efficiency: they modify the distribution of gains and losses to individuals and groups but do not create benefits or costs for society as a whole. The evidence for indirect effects on efficiency–through changes in defensive medicine, the availability of medical care, or the extent of malpractice–is at best ambiguous."
Do you agree with that language from the CBO report? Or how about this language?
"Malpractice costs amounted to an estimated $24 billion in 2002, but that figure represents less than 2 percent of overall health care spending.(12) Thus, even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small."
What about this on so-called "defensive medicine"? Here is what the report you cite says about that: "[W]hen CBO applied the methods used in the study of Medicare patients hospitalized for two types of heart disease to a broader set of ailments, it found no evidence that restrictions on tort liability reduce medical spending. Moreover, using a different set of data, CBO found no statistically significant difference in per capita health care spending between states with and without limits on malpractice torts."
Access to health care? The report you cite says this: "GAO investigated the situations in five states with reported access problems and found mixed evidence. On the one hand, GAO confirmed instances of reduced access to emergency surgery and newborn delivery, albeit "in scattered, often rural, areas where providers identified other long-standing factors that affect the availability of services." On the other hand, it found that many reported reductions in supply by health care providers could not be substantiated or "did not widely affect access to health care."
Since you cite the report, I am sure you agree with this: "Second, evidence suggests that very few medical injuries ever become the subject of a tort claim. The 1984 New York study estimated that 27,179 cases of medical negligence occurred in hospitals throughout the state that year, but only 415–or 1.5 percent–led to claims." A real crisis in the number of malpractice cases, isn’t there Steven? Face the facts: most mistakes are buried, and the families have no idea what happened to their loved ones.
And, finally, the bottom line of the report you cite: "[T]he evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect, either positive or negative, on economic efficiency."
9. "Finally, There is a legal jackpot system in this country, where physicians are forced to be judged by a non-medically trained jury with the fortune of hind-sight."
Well, it is good to know that you read your mail from the Chamber of Commerce. "Non-medically trained jury?" They become trained enough through the trial to figure out how to determine the standard of care. How use do you explain the cases where the health care industry wins? Are those just flukes by a "non-medically trained" jury? Are you advocating special courts for health care providers? Those proposals always amaze me – as if a subset of our society is entitled to special treatment in our judicial system because "what we do is just too complicated for the mere mortals to understand." Give me a break. The arrogance just drips off of statements like that. Doctors don’t deserve a special judicial system, and neither do trucks drivers or bricklayers.
And by the way, Steven – I don’t ask for juries in medical malpractice cases because I think the billions of the dollars the healthcare industry has spent attacking the civil justice system (rather than preventing malpractice) has so contaminated the jury pool that my clients have difficulty getting a fair shake in front of a jury. But I still get a jury – because the defendant health care provider demands one. The hypocrisy is deafening – defendants demand juries, praise them when they decide a case for a defendant and damn they when lose.
Keep the comments coming, Steven. Every single one of them helps the readers understand that your position is based on pure emotion, bias and prejudice, firmly rooted in the belief that health care providers deserve special treatment in our civil justice system.