Malpractice "crisis" a monster in the closet

Some in the audience at the AMA convention booed President Obama yesterday when he said he would not favor "caps" on medical malpractice cases -- contrary to my fearless prediction here yesterday morning -- but there were cheers when he indicated he was open to other reforms. I'm all for reforms that will make things better. One thing we need to do is to call a truce in the war between doctors and lawyers -- especially over medical malpractice cases. If there's a doctor in the house, swallow your bile and read on as I explain why the malpractice crisis is no more real than the monster in your kid's closet.

It is a fact that, in the universe of cases filed, there are relatively few malpractice cases. The extraordinary verdicts in some of these are usually in cases where the doctor is incredibly, embarrassingly guilty.

Oh, huge malpractice premiums are real enough. Premiums are so staggeringly high that they can, and sometimes do, drive good doctors from vital specialties -- such as obstetrics.

And, if you'll pick up any random edition of the Cook County Jury Verdict Reporter, you'll usually see a large number of medical malpractice cases represented.

But that's not because so many of these are filed -- it's because a disproportionately high number of these kinds of cases go to trial vis a vis other types of cases.

In Illinois, these kinds of cases go to trial because doctors have traditionally had veto power over any settlement.

That's not the way it works with an auto liability policy. A person sued for allegedly running a red light and smashing into another car has no say in whether his insurer settles -- even though he may insist, loud and long, that he did not run that light, that it was not his fault. The insurer makes an economic decision; sometimes it may even believe its insured -- and still settle the case, if the price is right, because it considers its costs through trial and the risks of receiving an adverse verdict.

But no matter how clear-cut the case against Dr. No may be, Dr. No may be able to insist on a trial -- and that seemingly outrageous verdict which follows may be the result of a justifiably outraged jury. Caps are the wrong way to contain these rare cases; the better way would be to allow insurers the right to settle cases when settlement is appropriate.

And even with those occasional guilty (and stubborn) as-all-get-out cases, in the plaintiff-friendly, overly generous, "judicial hellhole" of Cook County, doctors win more malpractice cases than they lose.

You could look it up.

Here, in one of America's largest cities, there are only about 10 or 12 plaintiffs' attorneys that I would entrust with a real medical malpractice case. Some I know by name, others only by reputation. I might be undercounting by a few -- but not by many. (For comparison purposes, there are something like 80,000 attorneys in this state.)

Why are there so few attorneys who I believe capable of handling a med mal case? It's not just that malpractice cases are difficult (although they are) but most attorneys simply can not handle the cost of carrying even one malpractice case to trial.

Nor is every incident of arguable medical malpractice a case that lawyer would or should take. Let me illustrate with an example in my own family, that I first wrote about in 2005. Older Daughter developed some serious foot problems while she was in college and these had to be treated with surgery. The first surgery did not go well.

[In that first surgery] a nerve was severed that should not have been. It has caused my daughter pain and discomfort since. A subsequent operation, by a different doctor, in which the nerve was 'tucked into' the muscle, has failed to resolve the problem. Now the second doctor has sent her to a third doctor, who proposes still other surgery.

My daughter was convinced that the first surgeon was a butcher who should be called to account. I tried to explain to her that, despite the severed nerve, the doctor might be found to have complied the applicable standard of care. And then I gave her the real bad news:

[I] pointed out that, although she continues to have pain, especially if she's too long on her feet, she may not have been injured badly enough to make it economically worthwhile to pursue a case for malpractice, given the costs and uncertainties of such a claim, even if a lawyer specializing in malpractice cases agrees with her unkind assessment of her first doctor.

She didn't want to hear that from me. She thought I must be a very bad lawyer to tell her these things. She wanted a second opinion.

Eventually, worn down, I referred her to a prominent, very successful attorney in Champaign (who also clerked for me many years ago before joining his brother's successful practice Downstate). Older Daughter went to meet with him; he was sympathetic.

However, he told her, he did not handle malpractice cases in Champaign because of the expense involved. He would refer her to another attorney who would evaluate her case.

Guess what? My ex-clerk sent Older Daughter to one of the 10 or 12 lawyers -- in Chicago -- that I would consider capable of handling such a case. This particular fellow was not one of the ones that I know personally.

And the punch line? This attorney reviewed all the records (I was pressed into service delivering them) and consulted with his own doctors (all the best malpractice attorneys have a stable of doctors with whom they can discuss the merits of a possible case; in fact, to even file a case in Illinois, a lawyer must have an affidavit from a doctor in the appropriate specialty attesting to the potential merit of the suit). After all this, he gave Older Daughter the news: Despite the severing of the nerve, it was at least arguable that the doctor complied with the standard of care -- and besides that, even if the case had real merit, the injury involved was insufficient to justify the expenses involved in bringing the case. Hmmmmm. Where had I heard that before?

No suit was filed.

I suppose Older Daughter could have found someone to file her suit. Some malpractice cases clearly are filed by attorneys who shouldn't be handling them. But those aren't the cases that result in boxcar verdicts.

Anyway, I firmly believe that doctors AND lawyers will have a part to play in real health care reform. Now that we've reached a truce on this malpractice business, let's move on to real reform tomorrow, OK?