A surgeon interviews a medical malpractice attorney: Read and decide

My interview series continues, this time with local litigation attorney Andrew Thompson, Esq. The topic this time is medical malpractice. I asked him a bunch of questions. He answered. See what you think.

1. In your opinion, is there a medical malpractice crisis in this country?

No. This is not even a close issue. The concept of a “crisis” or dramatic increase in the number of medical malpractice cases is a fabrication created by the U.S. Chamber of Commerce and the insurance industry. High-priced public relations firms have been hired to disseminate this message to the general public to generate support for tort reform bills. For the most part, the effort has been successful. The average person firmly believes there is a crisis, and tort reform bills have been passed in many States, including Ohio in 2003.

The Supreme Court of Ohio maintains statistics on civil (non-criminal) cases filed in the State. The following is a list of new cases filed statewide in Ohio from 2000 to 2011 that are classified as “professional torts.” Professional torts include not only medical malpractice claims against doctors, but also claims against lawyers and/or accountants. 2000 – 2,704 cases; 2001 – 2,650 cases; 2002 – 2,972 cases; 2003 – 2,683 cases; 2004 – 2,250 cases; 2005 – 1,908 cases; 2006 – 1,502 cases; 2007 – 1,483 cases; 2008 – 1,411 cases; 2009 – 1,368 cases; 2010 – 1,422 cases; and 2011 – 1,230 cases. As a percentage of all civil cases filed in Ohio, professional torts represent about 0.25% to 0.5% of the total.

As these numbers make clear, the number of malpractice cases filed in Ohio was never at a level which indicated a problem with our justice system, even before the passage of tort reform. This impression grew because of the amount of money invested by the insurance lobby and the Chamber of Commerce into their “public relations” budgets, not because of the reality of what was actually occurring. Consider, by comparison, the number of foreclosure cases in Ohio. In 2000, there were 35,382 new foreclosure cases filed in Common Pleas courts statewide; by 2010, that number grew to 85,483. Those numbers may actually indicate a problem, however there are not many lobbyists pushing for a bill to limit the banks’ access to the courtroom when they have been “wronged.”

2. Talk about the concept of “frivolous lawsuits.” To what extent does it occur?

It is difficult to try to quantify a precise number of “frivolous” lawsuits because the concept is subjective. At what point does a case that is close on the issue of liability become frivolous? The answer to that question certainly would differ depending on whether you ask the family of a patient or the treating physician. I can generally state that it is not a common practice, particularly in the area of medical malpractice, for one very obvious reason – a lawyer will go broke very quickly if he is filing and investing money in frivolous cases. A better way to explain this, and answer your question, is to look at how a “frivolous” lawsuit is handled by the justice system.

The idea that a lawyer can file suit for virtually any injury, regardless of the circumstances, and bully a doctor or insurance company into paying money in a settlement is unrealistic. Since the vast majority of medical malpractice cases result in a verdict in favor of the defendant, insurance companies rarely settle matters before litigation unless the liability of the physician is clear-cut. This forces an attorney to spend significant amounts of money on expert reviews of a case, which is required before a malpractice lawsuit can be filed. As a part of tort reform, a malpractice complaint must be accompanied by an Affidavit of Merit, which is a sworn statement by an expert in the subject medical field stating that the defendants’ actions in a case fell below the applicable standard of care, and the plaintiffs were damaged as a direct result. After the case is filed, discovery and depositions begin, including multiple expert depositions, before an insurance company will typically even consider settling a case. At this point, the plaintiff’s attorney’s investment has reached into the tens of thousands of dollars. If the case is frivolous, and there are experts for the defendant to support that notion, the plaintiff will most certainly lose the case and all of that investment.

In addition to the financial disincentive, there are procedural safeguards in the system to prevent the filing of such claims. A judge can dismiss a claim without a trial if the facts do not support a case against a defendant. The judge also has discretion to sanction an attorney who has no basis for the lawsuit (although this admittedly is rarely done). If a case is clearly “frivolous,” it will almost certainly not make it to a jury. But even if it does slip through the cracks, the ultimate filter for such cases is the jury itself. After being bombarded for years with stories of good doctors fleeing the state because of lawyers filing suit, it is virtually impossible to convince a jury to award money for a “frivolous” case.

But what about the McDonald’s coffee case, you ask? I won’t waste a lot of time on that issue other than to say that the facts of that case are much different than the public was led to believe. The woman who was injured did not receive the huge sums that were reported (because the system works), and the case under the circumstances was not as “frivolous” as you might think. The documentary Hot Coffee, which was recently shown on HBO, touches on a number of those issues in more detail than I can discuss here. See http://www.hotcoffeethemovie.com/

3. What is your stance on personal injury lawyers/firms advertising on TV/radio/Cavs games for business?

If it is done properly, I think it is not only acceptable, it is necessary. As discussed even on this blog recently, there tends to be different levels of justice in this country based on how much money you have to invest in good attorneys. If you are a wealthy individual or a big company, you probably have lawyers on retainer that you can call anytime an issue arises. If you are poor, and become an accident victim, it is important that you know that you have equal access to the court system and you can call an attorney who will talk to you for free. In this way, lawyer advertising that educates the public is beneficial. The poor accident victim would probably not know anyone to call without some form of advertising of legal services.

And then there’s the Hammer. Obviously, this type of advertising does not send the right message. Each State has its own ethical rules to limit certain types of attorney advertising, but apparently the rules can’t stop the Hammer. As with any business for profit, people will sometimes do whatever they can to attract clients/customers. The legal business is no different. Accountants put people dressed as the Statue of Liberty on the side of a busy intersection with a spinning sign during tax season, and attorneys will buy commercials starring the Hammer. Although distasteful, I think it’s a necessary evil to achieve the first goal I stated above.

4. What could doctors do to limit their liability, reduce possibility of lawsuits.

I recently met with a man in southern Ohio to discuss a possible malpractice case where his wife of 43 years died somewhat suddenly after a routine test in the hospital. The man is very conservative, and felt quite uncomfortable discussing the situation with an attorney. He did not like lawsuits, and believed there was something immoral about suing somebody, as if it would be a direct attack on the person. His wife was in her mid-80’s at the time of her death, so although it was unexpected, the outcome might have just been caused by her body wearing down after a long and active life.

So why did he call me? What raised his suspicions in this case? It turns out that something went wrong during the routine test, but nobody in the hospital, including the treating doctor, ever notified the family. The man first became aware of the problem when a doctor doing rounds in the intensive care unit mentioned the issue (likely assuming the family already knew). When the man later confronted the treating doctor about the situation, the doctor became very defensive, denied that the mistake was an issue, and concluded by telling the grieving man, “If you think I did something wrong, go ahead and sue me, I have insurance.” The man was so offended by the doctor’s attempt to hide his mistake and his lack of compassion for their loss that he felt compelled to explore the possibility of a malpractice case.

From my perspective, I think one of the best ways to avoid lawsuits is to be honest with your patients. If routine mistakes are made during treatment, people may be forgiving if you let them know immediately what happened and what you are doing to correct the issue and give the best care to their loved ones. I can state definitively from meeting people like the man in the example above that if the treating doctor would have been honest about what happened, and expressed some compassion, I would never have been consulted.

Before all of your readers in the medical field question my motives here and think the plaintiff’s lawyer is simply trying to get us to admit fault so he can sue us later, the very conservative Ohio legislature has you protected. Ohio Revised Code Section 2317.43 makes any expression of sympathy or apology by a medical care provider following an unexpected outcome in treatment inadmissible in a civil case. So not only is that apology inadmissible, in my opinion it will more often than not keep a case from ever being filed.

5. What are your ideas on proposals such as “health courts” and “no-fault compensation” paradigms, seen in other countries?

There is no more fair system of justice, whether in a medical malpractice case or a death penalty trial, than a presentation of facts before a jury of your peers. I am generally opposed to any system that removes from a person his or her Constitutional right to a jury trial. The underlying assumption in consideration of such a system is that our current legal system is not working; as I suggest above, that basic assumption is not accurate. Without the myth of frivolous lawsuits and runaway jury verdicts, there becomes no need to even consider health courts.

Instead of changing a legal system that is not broken, I would suggest that politicians consider further regulation of the insurance industry. To the extent doctors are fleeing a state because of malpractice, they are doing so because their insurance rates have gone up so dramatically that they can’t afford to continue in practice. Are those rates skyrocketing because of lawsuits, or poor returns on investment of premiums? Statistics suggest the latter. If public policy demands protecting good doctors who rarely make mistakes, then limit the amount that insurance companies are permitted to raise malpractice insurance rates in a given year. These good doctors will then know that, even if they make a mistake and get sued, they will be able to afford to continue their medical practice. There will be less of a need to practice “defensive” medicine, and patients who are injured have access to the legal system.

6. As doctors increasingly find themselves in employed positions, do you think lawsuits will increase or decrease? Will instead patients seek redress against large healthcare providers, i.e. Cleveland Clinic, Kaiser?

The employment relationship between physician and hospital does not significantly affect the likelihood that a physician will be named in a lawsuit. If the physician is an employee, both the employee committing malpractice and the employer hospital can be found liable under the legal theory respondeat superior. If the physician is an independent contractor, the hospital may still be held responsible for the actions of malpractice under agency theories if the patient looked to the hospital, not the independent physician, to provide competent medical care. For example, if a patient rushes to the Emergency Room at University Hospitals, he or she is not looking for a particular doctor, but is going because UH has a good reputation. If the doctor commits malpractice while treating the patient, even if the doctor is an independent contractor, UH may be held responsible for the acts of its ER physician.

Although the employment relationship is not particularly important, other factors in the legal system actually do increase the chances that you will see your name in a lawsuit. For example, the statute of limitations for malpractice cases is too short. By the time most attorneys are first contacted by a patient regarding a medical malpractice claim, there is insufficient time to fully flush out the issues and identify the proper parties. As a result, lawyers are forced to name in the lawsuit every physician that had input into the client’s care. (This is equivalent to “defensive medicine” in the legal system). Those physicians that are later found to not be involved are dismissed from the case. This is a small consolation for a doctor who now has to list the lawsuit on his malpractice insurance. If the statute of limitations was expanded to two or three years, there would be sufficient time for attorneys to identify only those parties that are responsible and narrow the pleading.

7. Absolute transparency is a terrifying notion for most practitioners. We all have bad outcomes and make mistakes. Do you think public disclosure of all hospital/doctor/surgeon outcomes would improve the current somewhat antagonistic relationship the general public sometimes adopts toward physicians or would it make things worse?

Although many plaintiff lawyers would love public disclosure of outcomes, I think from a practical perspective it is a terrible idea. Whether you are resolving a lawsuit set for trial or treating a seriously ill patient, there are too many variables that influence an outcome to allow the public to determine whether the result was “successful.” Publicizing an admitting diagnosis, treatment, and discharge diagnosis does not tell the full story, and would likely unfairly influence the public’s perception. If grandpa goes in for a hip replacement, and a previously undiscovered underlying medical problem causes his death during the operation, should the orthopedic surgeon be publicly charged with causing his early demise? How many resources are we going to devote to making sure public disclosure of medical procedures are accurately reported?

Although full disclosure to the public is not an idea I support, I would again emphasize that absolute transparency to the patient and family is important. Nothing has a greater impact on the decision of whether to pursue litigation, and the outcome of litigation, as a physician who intentionally withholds mistakes from his or her patients.

8. What are three things a physician can do to reduce his/her legal liability?

Be honest. Focus on mitigating the effects of a mistake instead of covering up its existence. Most patients and their families will forgo litigation against a doctor they trust, even with knowledge that malpractice might have occurred. And even if your patient ultimately sues, any statements you make to them as an apology are not admissible.

Keep good records. Particularly with increased use of electronic medical records, attorneys will find out not only what you wrote in your records, but when you looked at them or made any changes. There are many cases in which physicians try to “edit” a patient’s chart after it becomes clear that a malpractice case might be on the horizon. Juries typically do not appreciate such tactics, and it will show in the size of a verdict. If you are thorough with your recordkeeping, no changes to the chart will be necessary, and your attorneys will be better prepared to defend you.

Educate yourself about the legal process from independent sources. Too many physicians I talk to have completely bought into the propaganda being pushed on the general public about greedy attorneys filing lawsuits over every bad outcome and runaway juries awarding multi-million dollar verdicts. It would be stressful for any physician to practice medicine while believing The Hammer lurks behind every corner. Find out the facts, and understand what happens when you are named in a lawsuit. Armed with this knowledge, you will be far less concerned with litigation and more focused on your patients.

Background on Andrew Thompson

I attended Syracuse University Newhouse School of Journalism, transferred to CWRU and received a BA in Political Science in 1996. I obtained my J.D. from CWRU School of Law in 1999 and passed the Ohio Bar Exam. In addition to Ohio, I have handled cases in courts in Pennsylvania, New Jersey, Florida, and West Virginia.

I was an Associate at Chattman, Gaines & Stern in Cleveland until that firm dissolved in 2001. I moved with a partner from CG&S to Stege & Michelson Co., LPA, and became a partner at that firm a few years later. In October 2010, I left that firm to start a litigation firm in Beachwood — Dubyak Connick Sammon Thompson & Bloom, LLC. The firm has a focus on litigation, and my practice concentrates on railroad law, labor/employment and personal injury matters mostly from the plaintiff’s side, including medical malpractice. Every firm that I’ve worked at has handled medical malpractice cases.

Jeffrey Parks is a general surgeon who blogs at Buckeye Surgeon.

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  • buzzkillerjsmith

    Employed physicians. I worked at Kaiser for 6 years and was the main defendant in one case and involved in two more. One guy sued Kaiser for making him a drug addict. He showed up in different ERs and urgent cares and told the docs he needed just a few more tylenol 3s until he could get his shoulder surgery. This case went nowhere, but just a sample. None of my cases stuck. In the subsequent 18 years I have not been involved in any cases, directly or indirectly.

    Just one guy’s experience, but we used to think of Kaiser as quite an attractive target for malpractice, deep pockets and so on. Maybe it was California. Maybe it has changed, I don’t know.

  • http://www.facebook.com/people/Jason-Simpson/100001631757606 Jason Simpson

    I call BS on the claim that lawyers go out of business if they file frivolous lawsuits.

    John Edwards, the infamous rich trial attorney got no settlement or lost in court on 75% of his cases, yet he was a multimillionaire because the 25% of his cases that he either won in court or got a settlement on were huge windfall profits to cover his losses on the 75% of his other cases.

    Dont sit there and tell me that lawyers go out of business for filing bogus lawsuits.

    • http://www.facebook.com/profile.php?id=667722127 Eric Andrist

      I don’t think he was talking about “infamous rich trial attorneys.” The average person can’t get such a lawyer. Because of tort reform, most people can’t get a lawyer, period. It took me over 8 months to get a lawyer to take my malpractice case and that was only because I knew some people who helped. It wasn’t that my case wasn’t worthy, it was because of California’s tort reform law…lawyers actually cited that as to why they were turning me down.

      The types of lawyers that take an average person’s malpractice lawsuit, and takes it on a contingency basis, could very quickly go out of business is they took only those types of cases. Most of the lawyers I’ve found who do take these cases, do so almost in a pro-bono way. They know that they’ll probably lose money, but know that the case is good and has great merit because some great medical negligence has occurred.

      And no one said that lawyers go out of business for filing “bogus lawsuits.” Those are your words that you added. Lawyers don’t file bogus malpractice lawsuits for the reasons mentioned in the article. Not only for the contingency aspect but also because summary judgment precludes almost all “bogus” lawsuits.

      • Jason Simpson

        I call BS on this too.

        A friend of mine is a law student who clerks at a malpractice firm during the summers. He told me that their firm averages only about 15% settlement or positive verdict rates, meaning they LOSE on 85% of their cases. They are doing VERY well financially too.

        If you can lose 85% of your cases and still make a shitload of money, there’s something wrong with the legal system.

        • Guest

          Meh, most lawsuits drag on for YEARS, cost both sides (including the plantiff’s attorneys) thousands and come at very little reward. Sure lawyers bill thousands but how much do they actually collect? Do the settlements they receive recoup their costs?
          I am by NO means sympathetic towards malpractice attorneys, particularly those that represent plantiffs, but I am convinced after numerous experiences (thankfully, not all my own) that very few get rich through this process.
          Also, a law student gave you your information? I give that as much weight as if a med student made claims about the practice he was shadowing at. Get real.

        • Kathleen Kettles

          I would say your friend works for a terrible firm if that’s their record and they should get out of the business.

      • Mengles

        It wasn’t that my case wasn’t worthy, it was because of California’s tort reform law…lawyers actually cited that as to why they were turning me down.
        ===============================
        But, but, but…every malpractice lawyer says (like the ones that post here) say that they do it to defend the poor, helpless patient who can’t fight for themselves, and it has nothing to do with the big payoff, so how would tort reform change their underlying motivation? Oh wait, that’s bc the underlying motivation on their part really is money. Not that I begrudge them, but form them to claim it has to do with anything but money is simply ludicrous. The facts of the case don’t matter as to whether they will take the case or not. It has to do with the payoff.

    • Kathleen Kettles

      You call BS on everything but your own BS.

      • Guest

        The guy is an embarrassment to intelligent physicians everywhere.

  • http://www.facebook.com/people/Steven-Reznick/100000549195050 Steven Reznick

    There is no question that the number of med mal cases has decreased and the size of major law firms med malpractice division has decreased or been eliminated due to tort reform. That doesnt mean frivilous lawsuits do not abound. When a patient has a poor outcome, whether med mal has occurred or not, the case is shopped around. This generates a request for documents from the physician by the law firm considering the case and the physician, if they have med mal insurance has to notify their insurer. The insurer sends in an adjustor. They review the case and decide if there is merit in the case and if it is worth defending. Remember in most states when you purchase malpractice insurance the insurer has the right to settle the case even if you want to defend it. If the cost of the defense may end up being more expensive then settling for the face value of the med mal policy the physician will be screwed whether med mal actually was commttted or not ! You almost always retain a med malpractice defense attorney because the doctors interests and the insurance companies interests are not always aligned. A retainer runs $10k to start. If one firm decides it isnt worth pursuing the case the patient goes elsewhere and shops the case. The process is repeated taking weeks to months to years. Often a friend or relative takes the case. If a suit is actually filed you go through the long and tedious discovery phase. This can take months to years. Then everyone starts shopping for expert witnesses. Before the case gets to court , if it does, years go by, six figure legal fees are expended and these costs are modest compared to the costs of going to court. As for a jury of your peers being the best and fairest that is sheer horse manure. The jury is never composed of your peers as a physican , nor are the jurors peers of the judge or the attorneys. In fact jurors are not selected or rejected if they are in the health care field, if they know a med mal attorney, if they are friends or relatives of a physician or health care provider. It is rare and unusual if the jury is composed of college educated individuals with any degree of science or health education background so that they can understand and digest the very scientific information presented.
    When was the last time you met or saw a poor or struggling plaintiffs medical malpractice attorney. It doesnt take many victories in court to be very profitable with lay juries making the award part of the trial more lucrative than winning powerball

    • Claire Fredericks

      “As for a jury of your peers being the best and fairest that is sheer
      horse manure. The jury is never composed of your peers as a physician”

      I see this as a huge problem, not just in med mal but in any highly specialized case — engineering for instance. As soon as things start getting technical, you can tell that the vast majority of jurors just aren’t taking it in or able to process it.

      • VanessaObRN

        So when Bernie Madoff got sued by the victims who accused him of fraud and corruption, the jury should have been made up of fellow Wall Street financiers? Who else would understand the complex intricacies of a ponzi scheme.

        • adh1729

          There is a sensible middle ground; we can avoid the extreme options. Having an uneducated jury for a technical case is not justice. An all-doctor or all-engineer jury is not justice either.

  • karen3

    I would add three items on the how not to get sued.

    1) Practice good medicine. The big and expensive mistakes are made in diagnosis. If your method of analysis is to look at the patient’s top complaint and diagnose the most likely cause, you will probably be wrong half the time. Take the time to do a physical exam, take a correct history, yourself, and make sure you look for information that “disproves” your hypothesis rather than just confirmatory information. Follow up. Did what you recommend work. Get patient buy in. Make sure that the mechanics of treatment work well. If your nurse is an airhead with prescription fills, etc, that reflects poorly on you. If you act like a professional and like you care, you will have fewer mistakes and your patients will be more likely to chalk it up as an oops than you didn’t care, or even worse, that you were an antagonist.

    2) Be careful who you practice with. Is the hospital that you practice at filthy and have poor nursing care? Do they have unaddressed infectious disease problems? Poor discharges? Do your colleagues do a sloppy job/abuse substances/have other personal problems/are screamers or are otherwise malpractice flypaper? Because their malpractice can easily become your headache.

    3) It should raise a red flag if a patient tells you you are wrong. No, not that this patient is a malpractice risk of someone who is looking for a fast litigation buck– but that most people find it difficult to challenge a doctor. And so if someone raises a red flag to you, take it and step back and think before you react. Are you missing something. Is your professional pride getting in the way. Is there information that the person has that you don’t know or are not considering. Because if you are wrong and someone has told you that your are wrong, and you didn’t listen, and they get hurt, they will be mad. The number one cause of medical error is doctor arrogance. Not stupidity. Arrogance. The minute you think you are the only person in the room who can have the right answer, you are a lawsuit magnet, and your colleagues better run.

    • Guest

      4. COMMUNICATE. I’ve had complications and bad outcomes, and a huge factor in retaining patient support was communicating. “There was a complication, I am so sorry. This is exactly what happened, this is why you now have this issue, please call me with any questions or concerns.” One patient I used to call weekly for months, and she would talk for over 1 hour each time. She must have appreciated the listening, because she never sued, and she said how grateful she was that I took care of her.

  • Gregory Dursteler

    I think the dismissal of alternate dispute resolution processes used in other countries was a bit undercooked. Otherwise an interesting interview, always good to get a variety of perspectives on an issue like this.