in Uncategorized | 25 responses

The economics of the other side: What it takes for a plaintiff’s lawyer to take a case

“I am in the risk business. I work for free–unless we win. I advance the costs–sometimes hundreds of thousands of dollars in a single case–and don’t get it back unless we win. I don’t play blackjack, I don’t shoot craps, and I don’t play poker. I am a plaintiff’s lawyer. Simply put, gambling is my vocation, not my avocation.” (via CuriousJD)

Comments

Anonymous
If the baby lived, Senator Edwards filed a multimillion dollar suit for a lifetime of damages. But if the baby died the case was worth less than $1 million, so he wouldn’t file.
Anonymous
“I am in the risk business. I don’t play blackjack, I don’t shoot craps, and I don’t play poker. Simply put, gambling is my vocation, not my avocation.”
Every time I see a patient, I’m playing blackjack, shooting craps, playing poker.
Every additional patient is a risk. “Is this the patient who’s going to sue me? What do I need to do to cover my ass with this one?
chucky
I work in the ER. I have no choice but to take every risk there is. I can’t “pick and choose” cases. I take the risk for free. Many “clients” are drunk, stoned, gluttonous, or otherwise self abusive and staff abusive. Thirty percent don’t pay, for the rest I must accept whatever medicaid, medicare, insurance company decides to pay. I have been sued by the non-paying illegal alien. I assume the simultaneous risk of 20 beds filled with patients, a filled waiting room, and anyone in the hospital who decides to “code”. I assume the risk of everyone “dissatisfied” with their HMO and outpatient work up. I assume the risk of patients sent to the ER because their physician was not “comfortable”. I assume the risk of not having a complete specialty back up panel. I do this while being interrupted, while being interrupted, while being interrupted, by the next patients, nurses, other doctors, ambulance radio, pharmacy, radiolgy, lab, etc.
To use a blackjack analogy, I “hit” on twenty at different card tables simultaneously. It must be nice to be able to “pick and choose” your risk. It must be nice to take on a “case” one at a time. It must be nice to be able to “bill” for what you believe you are worth. It must be nice to be able to work without vultures on the sidelines waiting for you to screw up.
Curious JD
“I take the risk for free.”
No, you get paid regardless of the quality of your treatment. Your salary will be paid. You expend no money in advance of getting paid.
You go to work every day knowing that so long as they don’t fire you, and you may even have a contract governing those terms, that paycheck will be there at the end of the week.
You don’t worry about paying staff, the light bill, a plumbing leak, etc.
The plaintiff’s attorney does not “bill” for what he thinks he is worth. Most plaintiff cannot finance a major case against an insurance company on an hourly basis. I would expect were it you or your who were facing millions in medical bills because of someone else’s negligence that you would be utilizing a contingency fee arrangement as well.
Do you have risks? Certainly. We all have risks. But your risks are akin to those of the insurance defense lawyer, not the plaintiff’s lawyer.
chucky
CJD, you are constantly amusing.
NO, I am self employed, I am not on salary. There is no contract that “ensures a paycheck”.
I do not get paid for those who do not pay, but yet accept the risk.
We do hire and pay for staff (physician assistants, scribes) and accept their risk. We also accept the risk of staff hired by the hospital to carry out our orders and do not have the authority to hire, fire, discipline them, etc.
You are right about one thing, I do not pay the electricity bill. Our group expends significant capital on equipment and reconstrucion in conjunction with the hospital. We expend capital anytime we take on a new contract, hire a new partner etc.
It is amazing how much you know about things you don’t know about. I don’t claim to know everything but I know that the med-mal system is broken, with blame and solutions to taken from all areas. You constanly rail that doctors don’t care about patients and just want to protect themselves. (and you are somehow the caped superhero of justice) Nothing could be further from the truth. The sad thing is that patients who are legitimately hurt by the medical system get little compensation short of the highly publicised big “paydays”. In my opinion we need a system like New Zealand where possible errors are disclosed, professionally reviewed, and injured parties are actually compensated. Money would be saved, errors would be reduced, and fewer lawyers would be required. You are smart and could find something else to do. We will not get to that point however until all waring sides have fought to the death and the system has completely collapsed.
What is most annoying is the perception that bad outcome = negligence = someone must be responsible.
Anonymous
CJD – You ignore the fact that many docs, including ER docs, are not salaried employees, but do their own billing. They may not have to lay out cash in advance (with the exception of their training, malpractice premiums, etc) but they still have bad debt, uncollectables, and so forth. And when the patient who didn’t pay last time shows up again, you can’t turn them away.
Rich, MD
Where does the notion that doctors are largely salaried employees come from?
Curious JD
Forgive my assumption mbu. Rich, I don’t know where the assumption comes from. Probably because in the byzantine world of hospital billing us patients never know who is being paid for what or what their relationship is. Particularly if we only see the physician in the hospital.
But even as independent contractors, you can sign up for programs that guarantee reimbursement. Sure, you may have to fight over how much (and indeed sometimes even utilize the legal system yourselves to get paid), but you can be assured a good living from that reimbursement.
mbu, evidently you didn’t read the article in full. In fact, as the author points out it is not a case of “What is most annoying is the perception that bad outcome = negligence = someone must be responsible.” That perception exists only among physicians.
You, like the many anonymous’ on here, assume that’s the case without any actual statistics or facts. I would venture to say that you have no clue how many people get paid as a result of med mal claims.
But you’re right, maybe a universal health care and no-fault system would be a better way.
Rich, MD
But even as independent contractors, you can sign up for programs that guarantee reimbursement.
Sure, and the plaintiffs attorney can also go work as a public defender or do insurance defense and have similar security.
Curious JD
“You constanly rail that doctors don’t care about patients and just want to protect themselves. (and you are somehow the caped superhero of justice) Nothing could be further from the truth. The sad thing is that patients who are legitimately hurt by the medical system get little compensation short of the highly publicised big “paydays”. “
Incidentally, the first sentence is incorrect. Completely and utterly wrong, with no basis in fact. Lawyers do a service for their clients, but are not superheros.
As to who gets paid, while I appreciate that you seem to care, the legislation the physician groups back don’t seem to meet the goals you espouse.
Curious JD
“Sure, and the plaintiffs attorney can also go work as a public defender or do insurance defense and have similar security. “
Undoubtedly. But that doesn’t change the fact that the risk is completely different, and far greater for the plaintiff’s attorney. Which undercuts the bad outcome argument. If you read the article you saw just how false that claim is.
Anonymous
So if an attorney in Florida loses three cases, do they yank his license?
chucky
I made a mistake. I do pay the electricity at the group office, and the secretaries, billers, coders, accountants, and of course malpractice insurance.
“But even as independent contractors, you can sign up for programs that guarantee reimbursement.”
CJD can I hire you to sign me up for this program that “guarantees reimbursement” for the uninsured, illegal aliens, and those that don’t pay, or insurers that stall, downcode or pay an unreasonable fee? EMTALA law mandates that anyone coming to an emergency room hospital recieve stabilizing care. Seems reasonable doesn’t it? Except that there is no law or program or any intention whatsoever to reimburse for that. If you can figure that one out you can work for us with on a “salary” and never worry about the capital “risk” of being a plaintiff attorney and instead use your talents to help set up a no-fault system.
“What is most annoying is the perception that bad outcome = negligence = someone must be responsible.” That perception exists only among physicians.
Wrong. That perception is held by many in the public. How does that get propogated?
Curious JD
MBU, you’re enlightening me. Please continue. I am actually interested in the economics of your practice. What kind of contract do you sign with the hospital? How do you get reimbursed and at what rate? I do appreciate the coding games you have to play to get reimbursed, it’s why I don’t do insurance defense work. I’ve seen the class actions filed by physicians against health insurers. That’s why it is so odd to me that you believe everything they tell you on the other side and you’re so willing to go to bat for them.
How does that perception get propagated? Read the LA Times articles I linked in an earlier thread. Big plaintiff verdicts sell papers. Defense verdicts and settlements don’t. It’s kind of like shark attacks. A few happen close to each other and Florida has an epidemic which lasts all summer until the next big story comes around. They may have had 10x as many the previous year, but all the sudden it’s an epidemic!
Doctors and the AMA also promote that perception. All based on anecdotes of course. They do excellent work on behalf of insurers and pharmaceutical companies – have you read the HEALTH Act? Who do you think that benefits?
Do you think the tort reform movement is a new one? Since the 50s companies and insurers have been seeking to limit their liability. It’s PR, nothing more, nothing less. It makes financial sense for them. Who do you think funds websites like Overlawyered? Do you think the attorneys that run that site do it for free? That the firms and think tanks they work for allow them to spend those billable hours for no compensation?
You and I can talk no fault all day long, but because the insurers aren’t behind it, it’s not going to happen. Why do you think damage caps is the only proposal that ever gets anywhere? But hey, next time I see a group of physicians marching on their state capitol in favor of MORE people getting compensated, I’ll gladly pull over and join.
Anonymous
Are we, as lawyers’ prey, supposed to feel sorry for Plaintiff’s Attorneys because it’s so hard to suck out a living from what’s left of the health care system they helped destroy? Nobody told you to go to Pre-law once you flunked out of Pre-Med, dude? Why else would you be so condescending on this blog, calling our patients “victims”.
And by the way, the reason so many of us remain anonymous is because we’ve heard the sharks will use our comments against us in court when they sue us. All it takes is a googling of the DOc’s name you’re suing.
chucky
CJD,
Emergency Department contracts are wide and varied, I couldn’t cover all the variations. Some EM physicians are salaried employees by some private and government hospitals, teaching institutions, and stand alone HMO’s such as Kaiser.
Probably most are similar to ours in which “our group” simply has an agreement to “work” or “operate” out of the hospital. They don’t pay us. If hospital administration is unhappy they can expel us with varying notification periods, some as short 30 days. The hospital holds most of the power. Talk about being bent over.
Practice economics are much like any self employed business. Fees we collect for service minus all overhead (staff, coding and billing, transcription services, accounting, malpractice insurance equals salary, which varies month to month depending on expenses and accounts recieved.
EM physicians and all other physicians that provide emergency back up services are confounded by EMTALA law that says anyone coming to an emergency room has to have their emergent medical condition “stabilized”. It is an unfunded mandate. There is no guarantee for payment. A good portion simply “eat and run”. For those patients it might cost us 50$ in overhead and practice costs to treat that patient for “free” (there is some element of cost shifting that hurts everyone involved)
“That’s why it is so odd to me that you believe everything they tell you on the other side and you’re so willing to go to bat for them.”
I don’t quite know what you are getting at here? By them, do you mean insurers? Who says we go to bat for them? Insurers are what has made practice miserable. Reimbusement in the medical field is not based upon market forces. The going rate for a plumber might be 70$/hr. If you don’t pay you don’t get your pipe fixed. What is the worth of recognizing someones MI, distinguishing it from an aortic dissection and other contraindications and administering a thrombolytic, defibrilating and resuscitating from their arrythmias, talking on the phone with their doctor, the cardiologist, the family who have called in from all over the country, and getting them alive to the ICU?? Medicare might be 200$ if you had the time to document everything. Medicaid might be 100$. The various HMOs that we have a contract with might pay a flat 125$ rate regardless of the severity of the problem. for the uninsured, illegal, or otherwise no-pay patient that little resuscitation may have cost us 50$(discussed above), not to mention the stress and heartache. The hospital might charge 5 grand, but that is all we are going to get from it.
I think some other doc has mused on this blog. “Why am I worth so little when I do my job right, and worth so much when something doesn’t go right”
I think most doctors would opt for a no-fault system. As it is, progress is stymied because no one wants everything “open to discovery” not matter how trivial. The legal system currently has it pinned into that corner. I have to say I am jealous of the lawyers. You make the laws and hold the power. We want to practice medicine and take care of patients.
“Big plaintiff verdicts sell papers. Defense verdicts and settlements don’t. It’s kind of like shark attacks.”
Shark attacks. I think you are making my point. Plaintiffs attorneys are going for the rare big payoff. That is the only thing worth the “practice risk” for them. It has destroyed the system and dramatically raised costs due to “defensive medicine” I have estimated my own defensive medicine costs to “the system” as 2-4 million dollars annually on a previous thread on this blog.
Bob Vineyard, CLU
Yes Curious, there are docs on salary. These are usually staff physicians in a hospital or HMO.
And some docs are compensated on a capitated basis if they are under contract to an HMO.
But the majority of those in private practice receive a small portion of their revenue from patients via copays. The bulk is from third party payors.
When the carrier or the uninsured fail to pay the doc takes it in the shorts. Best case scenario is a 30 day float. Worst case can be 6 months or longer, particularly where Medicaid/Medicare is concerned.
And as for the uninsured, well that is why collection agencies were invented.
Anonymous
“No, you get paid regardless of the quality of your treatment. Your salary will be paid. “
I’m sorry but you’re an idiot and don’t know what you are talking about most of the time. Given your totally wrong posts about insurance issues and now this why should anyone take you seriously?
Curious JD
“Who says we go to bat for them? Insurers are what has made practice miserable.”
Who do you think really benefits from damage caps? They make you no guarantee that they will reduce your rates, or that if they do, that they will stay low for any period. Who do you think benefits from the legislation in Congress?
“I think most doctors would opt for a no-fault system.”
I think the evidence says otherwise. The AMA certainly isn’t pushing it. Doctors aren’t holding press conferences to push no-fault legislation. No one is telling horror stories of doctors running out of town or going bankrupt to get no fault legislation enacted.
Even assuming you’re right on what plaintiff’s attorney’s are going for, its rarity would seem to gut your case. How many truly devastating injuries are there? And of those, how many are related to negligence? As the original article indicates, these guys assess the likelihood of winning because it is their uncompensated time that is lost when they lose. They don’t take dogs to trial. Especially in med mal when the chances of winning are already so low anyway. No matter how persecuted you guys feel, in large part people still revere their physicians. Especially in rural areas.
I note your comment on defensive medicine. Have you ever considered that your practice of defensive medicine is based more on a perception of fear than a reality?
As for who makes the laws, you better check the makeup of your legislature. You’ll find very few practicing lawyers anymore, and those that you will find are generally corporate lawyers. There are few lawyers who represent individuals in your state and national legislatures.
Curious JD
“Emergency Department contracts are wide and varied, I couldn’t cover all the variations. . . Probably most are similar to ours in which “our group” simply has an agreement to “work” or “operate” out of the hospital.”
Well, let me ask you this, then. When you enter into that agreement with the hospital, you must have some expectation of personal income. What is the average you would expect for someone in your situation. Feel free to give ranges based on location or other variables.
chucky
CJD. You really are quite curious aren’t you? Your comments and perception of reality show that you live in a parallel universe.
Ted
Who do you think funds websites like Overlawyered? Do you think the attorneys that run that site do it for free? That the firms and think tanks they work for allow them to spend those billable hours for no compensation?
I should know better than to respond to anonytrolls like CuriousJD whose other arguments have been thoroughly refuted by others, but Walter and I run Overlawyered out of our own pockets (and, to be fair, mostly Walter’s pocket). When I worked at a law firm, I didn’t get a penny or a single billable-hour credit for anything I wrote at Overlawyered. The only benefit I got out of it was attention from the national media and the pleasure of knowing that opposing class action attorneys were having heartburn monitoring the site in the hopes of catching me violating a protective order by talking about a pending case I was working on. And thinktanks don’t have billable hours.
I blog for the same reason other attorneys do: I enjoy it, I care about the subjects I write about, I want people to read my opinions, and I think it will help my career.
Curious JD
Ted,
You and I both know that one cannot spend as much time as you and Walter do writing, speaking, touring on behalf of corporate America and still receive the salary of a partner in a large law firm unless there is a benefit to the client or the firm.
In the case of the firm you worked for, that is a who’s who list of US business. It’s nothing to be ashamed of. You shouldn’t hide from being a zealous representative of your clients. You do a good job – as an attorney, if not a public servant dedicated to the truth.
Your “think tanks” are simply more of the same. The same criticisms that you apply to groups like Public Citizen apply to your own employer now.
Curious JD
“CJD. You really are quite curious aren’t you? Your comments and perception of reality show that you live in a parallel universe.”
Mbu, is this you way of saying:
1. You don’t know the answers to my question about the HEALTH Act?
2. That I’m right about what legislation physicians are pushing?
3. You’ve never considered that the climate of fear may be based more on perception than reality.
4. That you didn’t realize how few practicing lawyers, especially who represent plaintiffs, are in state legislatures?
5. That you don’t want to share the economics behind your own practice for some strange reason, despite being obsessed with how much this or that lawyer makes?
I thought we were having an amicable discussion. Sorry to see you turned it personal.
chucky
OK, forgive me CJD. I did not mean to be personal. Like many EM physicians, I have a very short attention span. If I do not comment or answer all questions from a curious JD on the internet, it is not because I concede your position, but more likely don’t want to give it the attention or time. This is my last post here so you can have any last word.
Point by point:
1. do not care to comment at this time.
2. Physicians are just looking for ANY type of relief and ANY ally. The legislation could have better fundamental changes, but I don’t think that will happen until the system has completely collapsed.
3. This I guess where you and I will continue to live in different universes. I base my reality upon my reality. It is not perception. I do not have to look further than the lawsuits brought against me or my partners, or the every day realities of the environment in which I work.
4. C’mon. Rain is wet and snow is cold and there are more lawyers involved in the legislative process than physicians. No, I do not know specifically how many or how few are plaintif lawyers.
5. I may lament outrageous jury awards, but I have never been obsessed on this blog, or otherwise, on what lawyers make. If you are curious, and you are, and want to know what I make, it is not a hidden secret. Goggle EM physician salaries and you will find lots of different surveys and data bases. I just briefly looked at them and they are in the ballpark. Some are older and from teaching institutions so add 10% if you want.
I am proud that it has been estimated that the average EM physician provides 138,000$ ANNUALLY of Emtala, or charity related care, based on the only detailed study analysis I am aware of. Google Annals of Emergency Medicine emtala for the link. That was in 2002. Anecdotaly, I know that continues to rise.
We shoulder a lot of medical malpractice risk to provide that “free care”. Every patient is at risk of a complete collapse of emergency medical care.
Thanks for bantering.

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