Fascinating article from New York Magazine about the inner workings of a malpractice case. The plaintiff firm specializes in cases involving brain-damaged infants:
When Fitzgerald started doing “med-mal” cases in the early eighties, after a career in landlord-tenant law”””lucrative but not rewarding,” he says””firms like Fitzgerald that charged a contingency fee could take about a third of any award. Now their take is capped by law at a third of the first $250,000 and goes down to 10 percent of any amount over $1.25 million, making routine adult cases less feasible. But in the case of brain-damaged infants, the potential damages””pain and suffering, lost wages, and cost of care counted over a life span of 50, 60, or 70 years””can quickly spiral to enormous sums.
Related posts:
- The success of tort reform
- Losing a $14M malpractice verdict
- A foot grows inside a baby’s brain
- The cost of bringing a malpractice suit
- The worst medical malpractice cases you can possibly imagine
- Tort reform in Texas: Working better than expected
- Not every medical error is malpractice
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{ 17 comments }
Kevin, unsurprisingly, “forgot” this part in his blurb:
“For parents, contrary to ghoulish popular conception, suing on behalf of a disabled infant is not a way to get rich: The money they win goes into a trust administered for the child by a court-appointed manager.”
He also “forgot” the part about how the parents lawsuit being about the truth transformed into, at the end, being about the money. Surprise! Or perhaps he didnt’ forget, but just couldn’t include the whole article in the blurb.
Think things through before you post, please.
Of course it’s about the money. The money needed to get this kid the care he needs.
Think before you post, indeed.
At least you’re honest about it. The point was that the plaintiff originally said the suit was about finding the truth, not money (did you not read the article first?), but in the end, was perfectly willing to not finish the trial or find the “truth” in a jury verdict, but instead took cash when she was (at least according to the article) probably losing the trial. It was about the money, and who was responsible for what had little, if anything, to do with the outcome.
Correction, read the article AND think before you post, please.
Why not be honest about it. Money is the currency by which we largely assign responsibility in this country.
I did read it. And many med mal plaintiffs will say the same thing because they are stonewalled. But you can’t sue just for an explanation, the judge will throw it out because it’s not something the court can order. So if I had said she’d sued for an explanation, you’d have pointed out the fact that her complaint requests money, not an explanation.
She took the cash because when you’re trying to pay for your kid’s health, a little bit of something is better than all of nothing.
You really need to get a better idea of what you’re talking about before you go pontificating on it.
This article is excellent. It should summarize not just the process, but the problem, for the uninitiated. This was a high risk pregnancy with a bad outcome. Just because the child will require high cost care doesn’t automatically mean that the doctors and hospitals must be responsible for it.
Reading the article, could anybody believe that the plaintiff had made her case? Her only medical expert witness was a bufoon. He wasn’t even an OB/GYN. He is a professional witness. And yet these cases A) are accepted by attorneys, and B) are settled by insurers simply because the risk on the downside is limitless. Is it any wonder that Dr. Stein would be just a little bit demoralized by this process? She now has a 1.5 million dollar settlement on the National Practitioners Data Bank, even though no credible evidence of malpractice was ever given.
Incidentally, the arguments given by the insurer as to why they settled are a perfect explanation as to why caps limit the overall cost of this litigation. (Before you get all excited, I know this is a case where the damages were all economic, not non-economic.) In caes where non-economic damages are limitless the insurer always has to weigh the risk of an unfavorable verdict, no matter how small, versus an estimate of how high those damages might be. When non-economic damages are limited by statute, the insurer knows exactly where the upper limit is, and it is at a lower level. They are less likely to settle a strong case with that protection.
Which is exactly why plaintiff’s attorneys hate caps. It isn’t the rare jackpot, its the threat that lurkes over every case and strenghtens their hand.
“Reading the article, could anybody believe that the plaintiff had made her case?”
You do realize the silliness of this statement do you? It would be like reading the story of a surgery and asking if anyone believed the surgeon had done his job correctly.
“Incidentally, the arguments given by the insurer as to why they settled are a perfect explanation as to why caps limit the overall cost of this litigation.”
You must not have read the article. The insurer settled becaues the cost of the case, in terms of uncapped economic damages, was in the multimillions. Insurers will weight that in just about any case, caps or none. No one disputes caps will limit the value if not eliminate many horrific injury cases involving children and the elderly. Of course, that doesn’t answer the question of why those people should suffer just so insurers can make more money.
Anon,
The question isn’t one of trading the suffering of children for insurance profits (although I don’t blame you for mischaracterizing the issue that way, you don’t really have a whole lot else to go on), the question is one of why parties that haven’t been proven to be responsible for a bad outcome should be held financially liable for it. And, unsurprisingly, you haven’t had much to say on that topic, and I don’t expect that you will.
You ask, “why not be honest about it”, and the answer is quite clear. Most attorneys and plaintiffs at any point in the litigation promise will absolutely not be honest about it. To admit openly that the suit is about the money is to admit far too much that juries would not want to hear from a theoretically sympathetic plaintiff. The fact that so much dishonesty is necessary for the plaintiff’s lawyer to profit says a great deal about the system and the people sometimes responsible for lawsuits. And it doesn’t say good things.
Matthew:
You have hit the nail on the head and have met CJD, the master of mischaracterization, who now just remains anonymous.
Oh, we’ve met before. If I was him, I’d go anonymous too.
“e question is one of why parties that haven’t been proven to be responsible for a bad outcome should be held financially liable for it. And, unsurprisingly, you haven’t had much to say on that topic, and I don’t expect that you will.”
Actually, Matthew, I completely agree with you on that topic, and despite your selective ignorance, have said so repeatedly. I only think cases where negligence has been proven should result in a damage award.
But damage caps, which is what 90% of all tort reform proposals are, do not address that issue. They simply arbitrarily cap the damages of an individual regardless of responsibility of the defendant, for the sole benefit of the doctor’s liability carrier.
” To admit openly that the suit is about the money is to admit far too much that juries would not want to hear from a theoretically sympathetic plaintiff. “
Here’s where you expose your ignorance of the process. From day one, it’s admitted openly. The suit asks for money damages, and that’s it. It doesn’t request an apology or an explanation because it cannot – the court cannot award that relief. So for you to say they are not “open” about it reflects a fundamental lack of knowledge of a civil suit.
And that certainly doesn’t say good things about your ability to make criticisms when you have such a meager understanding of the thing you’re criticizing.
From the article (PLEASE go read it before you post again, thanks):
“It was about getting the answers that I needed,” she says. “I needed to know why this happened to my son.”
Or, just go back and look through god knows how many articles about any number of civil suits and look for the phrase “not about the money”. It’s ubiquitous.
Understand, I don’t blame the plaintiff at all for taking the settlement in lieu of getting a real answer about what happened to her son, it’s completely understandable. The point was that plaintiffs and their attorneys rarely admit that the money is the most important thing, and the truth is secondary. The fact that the money is the most important thing doesn’t speak to the integrity of the lawsuit on either side, but that’s not really the issue. Your denial of this is silly, but then, that’s never stopped you before.
I’m going to get us back on point, there was an anon 6:32 am comment that I was responding to, not sure if it was you or not, but we’re not talking about damage caps at the moment. That commenter characterized the issue as the evil insureres versus the innocent victims that deserve their money. That was what I objected to and recharacterized in a more accurate and meaningful light. Changing the subject doesn’t alter the inaccuracy and lack of integrity displayed in the post I was responding to.
I know what she said, in fact, I referenced it already in one of my posts. And I’m sure to her, that’s what she wanted to know, and she at least got an idea of as a result of the trial. But she was also asking for money, and I’m sure she wouldn’t dispute that.
The only thing “ubiquitous” is the request for money damages. It’s in EVERY one. I’m sure you’ve read many civil complaints, so you know this.
They “rarely admit” it? How do you figure? They ask for it in opening statements, they talk about costs with witnesses, and they ask for it in closing statements. It’s all public record. Again, I’m sure you’ve watched many civil trials, so you know this as well.
Why are you trying to pretend you’re ignorant when you’re obviously an expert on civil trials? At least, I assume you are given the amount of criticism you have.
Like it or not, when you’re talking “reform”, you’re talking damage caps. I’ve yet to see a reform package hit a legislature that didn’t include them – I’d bet they are in 90% of all of them.
And damage caps exist to protect insurance profits. And they fall hardest on those who don’t work – ie. children, stay at home moms, and the elderly. That’s a fact, whether you like it or not.
You’re making the same mistakes over and over again, so let me help you out once more.
No one ever said that plaintiffs weren’t asking for money, or that they were trying to hide the request from anyone. The point is that often the money is the most important thing, and the truth is not nearly so important. That’s what plaintiffs and their attorneys attempt to distract juries and reporters from. Plain and simple. It makes sense, it’s good strategy, but it’s dishonest and misleading. The phrase “it’s not about the money” is meant to make it seem like truth is more important than financial damages, when in fact, most plaintiffs are more than happy to settle for cash, regardless of what information they actually gain from the process. You haven’t addressed, much less refuted, any of that, so I’ll just assume we agree and move on. I’m not going to address the other arguments that you’ve moved to that aren’t on point.
The bottom line is this: the plaintiff was, in fact, more interested in money than truth, and despite the fact that (at least according to the article) the plaintiff was probably losing the trial and no credible evidence of real malpractice was presented (again, no, I was no more in the courtroom than you were, but we’re going by the information available), she still got paid.
I suppose if you really wanted to move the discussion on in a meaningful and relevant way, maybe you could debate the merits of health courts or something like that, but damage caps have no bearing on this article, this case, or this thread. Do you really not have the ability to see that, or did you only prepare one line of argument that you’re going to force into whatever discussion comes up?
“No one ever said that plaintiffs weren’t asking for money, or that they were trying to hide the request from anyone.”
Actually, Matthew, you said “He also “forgot” the part about how the parents lawsuit being about the truth transformed into, at the end, being about the money.” Again, this remains false, because from the very beginning of the claim, it is a request for money. Read your own posts.
” That’s what plaintiffs and their attorneys attempt to distract juries and reporters from.”
Again, no, it’s not. Money is talked about from opening statements through closing. The costs are the key. Reporters have access to the whole thing, including the pleadings. The plaintiffs and their attorneys and the defense and their attorneys don’t control what journalists write, though.
” when in fact, most plaintiffs are more than happy to settle for cash, regardless of what information they actually gain from the process.”
They don’t have a choice. Cash is the only thing they can get. Most can’t afford to hire an attorney and the experts necessary just to get them an explanation pre-trial.
” the plaintiff was, in fact, more interested in money than truth,”
That is nothing more than an assumption on your part.
“I suppose if you really wanted to move the discussion on in a meaningful and relevant way, maybe you could debate the merits of health courts or something like that, but damage caps have no bearing on this article, this case, or this thread.”
Health courts, in their most common incarnation as promoted by Common Good, do include damage caps. We can talk theory if you want, but as far as legislation goes, damage caps are what is on the table, whether you like it or not.
Seriously, educate yourself on this process before you go pontificating about its ills. You clearly lack even the most basic understanding of how a medical malpractice case works and what is involved.
The reason behind your anonymity becomes more and more evident with each ill-informed, misguided post. I wouldn’t want my name attached either.
The fact that she was more interested in money than truth is not an assumption, it’s evidenced by the fact that she outright chose money over truth. Again, it’s understandable, but to call that nothing more than an assumption reveals a lack of even the most basic understanding of the article and the discussion at hand.
You tried to steer it back to damage caps, but we’re not going there. Still not relevant to the article, post or discussion. I’m sorry you don’t have anything else of value to contribute.
Health courts as a concept don’t “include” damage caps or anything else. There may be a specific proposal that you’ve looked at that includes both, but your attempt to linke them was pretty sad.
And no, cash isn’t the only thing they can get. They can go through a full trial, hear what everyone has to say, and hear what the jury verdict is. Sacrificing those things to assure financial retribution against an accused and unconvicted party is understandable, but it’s not the only option.
If you’d go back and reread my post (or maybe for the first time, I’m not sure), I was simply pointing out that Kevin left out arguments on both sides of the aisle. Your first post was silly, my post demonstrated that, and the point still stands.
And no, attorneys don’t directly control what journalists write, but they influence it. Just ask Mike Nifong about the accusations leveled against him for inappropriately trying to influence the jury pool for his case with bad press releases. I’m sure he’ll tell you all about it, since you clearly haven’t done much thinking on the topic.
This is my last one on this thread. I hope you learned at least a little something in the process that will help get the mud out of your thinking.
Good luck!
The reason behind my anonymity is simple laziness. But I imagine you’re not the only “Matthew” in the world.
” it’s evidenced by the fact that she outright chose money over truth.”
Please explain how the court could award her “the truth”. In your exhaustive review of the Rules of Civil Procedure and the statutes, tell me how she was going to get awarded “the truth” by any court.
“Health courts as a concept don’t “include” damage caps or anything else. There may be a specific proposal that you’ve looked at that includes both, but your attempt to linke them was pretty sad.”
Again, read the Common Good proposal, which is the only “health court” with much wide backing or is even close to being a legislative proposal. When you do, come back and explain how they don’t include damage caps. Until then, pipe down on the subject, you’re really embarrasing yourself.
“They can go through a full trial, hear what everyone has to say, and hear what the jury verdict is.”
So your solution is for this woman to pay out of her pocket her attorney’s hourly rate, all the experts, and all the costs of exhibits, and then hear the finding of negligence, and dismiss the case before damages are awarded? I guess, in theory, you’re right – that could happen. You’ve really got me there!
” I was simply pointing out that Kevin left out arguments on both sides of the aisle.”
Perhaps you were, there. But you’ve since spiraled out of control and way past the depth of your knowledge.
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