In malpractice trials, doctors are presumed guilty and must prove innocence

Another view on the impact malpractice trials have on physicians – even when they are not found negligent:

Later that day, when I was alone with my thoughts, I had more time to contemplate the effect of this lawsuit on the doctor. A trial may or may not require the presence of the physician in the courtroom, but absence from the trial may lead the jury to feel that the physician is uncaring and aloof, and certainly might give the jury an impression that the physician would not wish to convey.
Under such pressures, most physicians choose to attend their trials. Their presence in the courtroom removes the doctor from the office, creates havoc with his practice and can devastate him financially. Staff must still be paid, lest they move on to greener pastures. And the patients still have needs. Who will treat them while the trial continues? And when can the doctor see his or her patients?
In this case, this may require the physician, already fatigued by the stress of the trial and time in court, to see patients at night and on the weekends “” if his loyal staff and patients are agreeable to such an arrangement.
If the physician has a spouse and children, the stress of such a change in his or her life can create terrible difficulties, Âfurther magnifying the pressures created by the trial.
Under our legal system, we are innocent until proven guilty. In the case of a malpractice case, it almost seems as if we’re guilty and must then prove ourselves innocent. And no matter what the outcome, even if lack of guilt is determined, a high price will be paid by the defending physician.

Comments

Anonymous
What a silly post. Of course the physician needs to attend their trial. They will be testifying.
As for missing work, how do they pay the staff, treat patient needs, etc. when they’re on vacation? If they don’t want all the headache of having to face a patient they may have treated negligently, then settle the case.
“Innocence until proven guilty” has nothing to do with a civil trial. This is what you get when you wax poetic about things you have not even taken the time to understand.
Notice one thing missing from this sob story? The injured patient, whose life is also stressful as a result, likely facing financial pressure far beyond the physician, and not to mention in PHYSICAL pain.
Anonymous
Doctors don’t go on vacation for weeks at a time like a trial would. Maybe you have that luxury in your profession, don’t assume everyone does.
So in a civil trial, you’re saying the defendant is not innocent until it is proven that they committed an offense worthy of paying reparations? Maybe you could explain a little more why innocent until proven guilty is not applicable to a civil trial.
Criminallopath
And yet providers win the majority of medical malpractice cases. On the other hand, if this was a discussion about a soft-fraud case or some other nonsense, the clinician would have no problems being at the trial in order to peddle his/her junk science causation theory. The correlation that I have suggested continues to be supported: physician as profiteer = legal system is good, physician as defendant = legal system is bad.
Anonymous
“Doctors don’t go on vacation for weeks at a time like a trial would. “
What percent of all medical malpractice claims go to trial and last more than one week?
“Innocent until proven guilty” is a concept of criminal law. What you’re wondering is what the burden of proof is. In criminal law, it’s beyond a reasonable doubt. In civil law, which includes medical malpractice cases, it’s “preponderance of the evidence”. And it is the PLAINTIFF’S burden to prove all the elements of the claim to that burden. In other words, that a breach of the standard of care occurred by a preponderance of the evidence, and that the damages were a result of that breach by a preponderance of the evidence.
Anonymous
Certainly there is a case to be made here for loser pays, including patients and their advising lawyers who bring weak and speculative actions. If you had to pay for not only the costs of a successful defense but also costs of lost time at trial and preparation, you might weigh the cost of that lottery ticket a little differently. And let those lawyers who think every person should have a shot a the tort lottery put up a bond to pay for costs to the other party if they think the present state of affairs is so right. Doubt they would, though; lawyers love to walk away from the damage they do.
Neither Great Britain nor Australia, which have such provisions could be said to be sinkholes of injustice, nor does that provosion appear to prevent worthy actions in those countries either.
Anonymous
We already have loser pays in most states.
As for a “lottery” ticket, I doubt you would trade places with any of the winners of this particular “lottery”.
Great Britain and Australia have universal health care and all the docs are govt. employees. Do we get that too?
Anonymous
“Great Britain and Australia have universal health care and all the docs are govt. employees. Do we get that too?”
Not so fast. G.B. has a dual public-private system. Australia is a private system with extensive public insurance, Medicare for almost everyone, if you think of that. Neither has doctors primarily as government employees.
Both countries have far more substantial educational financial support at the university level for training doctors than does the U.S., which leaves far more of the costs burden on the individual. So no, the tradeoff would not be equitable unless you also include the investment costs as well.
And most states have pseudo-”loser pays” for defendants when the defendant is the loser, not for the plaintiff when the plaintiff fails to “win”. It is only a one-way arrangement. Don’t try to confuse this. True “loser pays” means that plaintiffs pay the defendants costs of defense when they bring action but do not prevail. That is the system as it applies in the UK and Australia. And it very definitely does not apply in most states, in fact it applies in no states.
Anonymous
“And most states have pseudo-”loser pays” for defendants when the defendant is the loser, not for the plaintiff when the plaintiff fails to “win”.”
This is incorrect. Most states provide that a defendant can make an offer of judgment for a certain amount, even if it’s $1,000. If the plaintiff fails to come within a certain percentage of that amount on their verdict, they are liable for all costs incurred after that date by the defendant.
Check the Rules of Civil Procedure for most states.
Anonymous
Offer of judgment is definitely not the same thing as the UK/Australia concept of “loser pays”, it is a wagering against the verdict. Ladbrokes will treat you better.
Anonymous
No, it’s not. You are not wagering anything. In practice it’s no difficult from the systems you tout. If you think the value of the case is zero, you can offer $1. Done and done.
As for the British version of “loser pays”, it’s not as simple as you presume it to be. If there is a good faith dispute on the facts, the winner may not be awarded their costs. Same with a dispute about the interpretation of a contract clause, for example.
For more info, go here:
http://www.austlii.edu.au/au/other/alrc/publications/reports/75/23.html
Rich, MD
What percent of all medical malpractice claims go to trial and last more than one week?
I am involved in 3 cases. One has gone to trial. In the other two I have not yet been deposed. I have spent more than one week missing my patient care duties in all three cases. When you consider meetings with attorneys, depositions, reviewing documents and expert witness reports, I cannot see how anyone misses less than a weeks work before even getting to the courtroom.
anon 11:03:
The injured patient…
Even your language betrays your presumption of the physicians culpability. You will probably argue that he is injured whether the physician in culpable or not, but then you would probably not have used the word “injured”, you would use a word such as ill, sick, suffering, or dead, which describes the patient’s state of being, and not the manner by which he/she arrived there, such as “injured” which connotes that his problems are clearly due to the actions of another (at least in this context).
Anonymous
Rich,
When doctors’ partnership agreements go bad, and they sue each other, don’t they do the same thing? Should we in some way limit your ability to do those? Were you in a wreck today and the other party was at fault but their insurer wouldn’t pay and you sued, would the other party not miss time away from their job? Why should you get an exemption because you’re a physician?
As for reading tea leaves into the word “injured”, that’s your own issue. Culpability is for the people who have seen the evidence to determine.
Rich, MD
Anon 4:40:
I should not get an exemption because I am a physician (I never suggested that; your turn to read tea leaves ), and being sued is time consuming for anybody. I am just pointing out the fallacy presented in the rhetorical question posed by Anon 12:59:
What percent of all medical malpractice claims go to trial and last more than one week?
which suggests that
a) the majority of malpractice claims are trivial in terms of the time they consume,
b) Only claims that go to trial consume any significant time at all, and therefore,
c) only the minority of claims, those that get to trial, should be considered when discussing the costs associated with malpractice claims.
I assert that the costs of the cases that do not go to trial are also quite high, and if they are the majority, then very significant. I have also been involved in non-malpractice torts, and they are equally time-consuming, but significantly less taxing emotionally.
Furthermore, I have never had to fear that I would be prohibited by law (in my state as in many where liability coverage is mandatory) from continuing in my profession (and therefore in my ability to provide for my family) as a result of a non-malpractice tort claim.
From my own personal experience, unresolved claims, and claims found in the physicians favor, have a significant negative impact on one’s ability to acquire liability coverage, even in the case where there is no settlement or payment.
Rich, MD
Criminallopath,
You continue to generalize your notion that physicians are quite happy taking lawyers dollars to spew their “junk science” in the courtroom, but I believe that it is probably more likely that those who do are a minority. Maybe there are a significant number, but I would rather see patients in my practice, thank you. I also try to steer clear of getting involved in such cases. I am certain that I am not alone.
Most torts are about money. You did something bad, therefore you should make me whole by giving me money. Fine. I get it. I accept it.
One characteristic of med-mal as pertains to the physician, is that for many, it is about much more than money. True, it is about more than money for the plaintiff, but that is all that they can ask for.
So if someone drives recklessly and negligently injures another, casuing him to lose his foot, for example, there is a suit, the reckless driver loses, he or his insurer or both pay some money. Perhaps he is required to take a driver training course if the judge is inclined. He’ll get over it. He will go on. With rare exception, he can still drive. He can continue to go to work, earn a living, etc.
Another person is similarly injured during a medical procedure, resulting in the loss of his foot. For the argument of this discussion, the doctor screwed up and committed some form of negligence. He or his insurer or both have to pay some money. Say he is contrite and agrees to settle with the plaintiff. The plaintiff is satisfied. Now, however, the physician finds that his insurer will not renew his policy. His state requires by law that he have liability coverage. Because of previous claims (for which the hypothetical doctor was found to not have caused malpractice) he has difficulty acquiring coverage, it is prohibitively expensive at best, and while the plaintiff has been satisfied, the physician’s earning potential is diminished (if not eliminated) for at least the next 5 years (in my state).
So, two victims, two negligent people, same injury. Non-doctor pays his increased auto premium, or takes the bus. Doctor pays his increased premium (if available), or loses his livelihood. Equitable?
Anonymous
“which suggests that
a) the majority of malpractice claims are trivial in terms of the time they consume,
b) Only claims that go to trial consume any significant time at all, and therefore,
c) only the minority of claims, those that get to trial, should be considered when discussing the costs associated with malpractice claims.”
Actually, the question just asked what percentage go to a trial that lasts more than one week? Do you know the answer or not?
“Furthermore, I have never had to fear that I would be prohibited by law (in my state as in many where liability coverage is mandatory) from continuing in my profession (and therefore in my ability to provide for my family) as a result of a non-malpractice tort claim.”
What law prohibits you from practicing medicine if you are found to be negligent in a malpractice claim?
If claims found in your favor make it harder for you to get insurance, then that’s a problem with insurance, not the tort system.
Anonymous
“So, two victims, two negligent people, same injury. Non-doctor pays his increased auto premium, or takes the bus. Doctor pays his increased premium (if available), or loses his livelihood. Equitable? “
Yes. They are both paying an increased premium. Take away a car from many people and they lose their livelihood.
Criminallopath
Rich,
Let us make sure that we are comparing the same legal situations here. The laws (to my understanding and I am not a lawyer) governing general tort actions (such as MVAs) differ substantially than those governing professional liability (medical doctors, engineers, etc. engaged in the course and scope of their professional practice). Of course, being a defendant in any action is time consuming.
One (of many) similarities across these two general areas of law is the the expert witness system, which includes the primary care provider proffering “expert” opinion testimony. This is the area that is problematic, from my perspective, in the context of both the run of the mill PI case and the “John Edwards” type medical malpractice case. The latter has been debated here in great detail and suffice it to say that my view on those cases is that they should be vetted for scientific credibility under a rigorous standard akin to that of toxic tort cases – showing general causation and showing specific causation (not the post hoc ergo propter hoc BS that is typically bandied about). It would appear that the majority of posters here are in agreement that bad science gets into the courtroom on a frequent basis in medical malpractice cases and should be stopped. There is little value in cheer leading a point that we all agree upon. Now, let us talk about the more difficult point – the role of provider as litigant advocate/treatment provider and usually one with a vested financial interest in the outcome of the case. This is the form of provider involvement in the legal system that few wish to address. It is more prevalent than you make it out to be. Every single PI case requires a provider (MD/DO or even a chirofrauder) to support the plaintiff’s contention of the case. Not surprisingly, one will rarely hear about the complaints from the physicians involved in these cases when it comes to time away from practice, depositions, trial preparation, etc. Unfortunately, the clinical “science” behind these cases is as bad as that behind certain medical malpractice cases. Relying on the subjective history provided by the litigant in regards to their onset of subjective symptoms, use of a purely subjective physical examination, objective tests for which no methods have been established for dating any pathology present, in inability on the part of the provider to actually evaluate the event in question and quantify the appropriate noxious factor, etc. And yet we see the spurious claim that “because patient denied symptoms prior to the accident, that the accident caused the diagnosed injuries.” These cases, in which the providers profit handsomely, are the ones where there is usually no complaint from the providers about the time, money, misuse of court resources, etc. So, you have the same bad science as in the med mal arena but a correlated amount of criticism based upon the role of the provider as profiteer vs. defendant. If we are going to change the legal system then it should be changed across the board. If we are to have caps on awards then it should be applied to all cases. If we are to get rid of the junk science in med mal cases then we should get rid of it in PI cases as well.
Anonymous
The medical industry has some major housecleaning to do. If you didn’t have negligent physicians who make the same mistakes that all to commonly mame or kill patients and ruin family member’s lives, then maybe you wouldn’t get sued, and an honest mistake would take just an apology. Health Care protects the doctors and nurses way beyond what they should do. If good physicians and nurses would report the bad, the maybe the industry would be trustworthy.
I know I work health care, have a sister r.n. and a mother that was put to sleep in a hospital because of to much pain medicine. We found her with rigamortis and had to tell the nurse she was dead and they had the nerve to try to cold her frozen dead corpse and rearrange the medical records. There my comment if you do or know of evil, then you deserve what you get.
Roxie