How a personal injury lawyer views the medical malpractice system

Personal injury lawyer Eric Turkewitz responds to my recent USA Today piece on fixing the medical malpractice system.

In a USA Today op-ed, Kevin Pho tackles the medical malpractice liability system. Some stuff I agree with, but suggestions regarding improvement of the current system are unlikely to work.

Kevin correctly states that malpractice legal fights often go on for years. In New York, it could easily take three years to get to trial, and often more. And Kevin also correctly states that significant sums of money are wasted on litigation, as opposed to compensation, writing that “These costs do not justify this level of inefficiency.”

But inefficiency doesn’t seem to be the right word. Why would a slam dunk case such as a retained sponge take years to get to trial? I write this from personal experience, where defendants often don’t bother to even ask how much the patient wants to settle the case until the time of trial. Is such a delay the fault of the patient’s lawyer, who won’t get paid until the suit is over and who has an interest in moving the case fast? Not very likely. In one of my first posts as a blogger (No, Your Medical Malpractice Case Will Not Settle Fast) I identified three reasons why it happens:

* If the insurance companies make your life miserable — even on slam dunk cases of retained surgical equipment — then attorneys won’t take smaller suits because it isn’t worth the immense amount of time and money needed, thereby decreasing the overall number of malpractice cases;
* Defense lawyers bill by the hour and have no incentive to reach a quick disposition; and
* If the patient gets a favorable verdict in New York, then interest on the money starts to run from the time of that judgment, not from the time of the incident. Thus, the insurance companies continue to hold and use the money for investments in the interim.

These “inefficiencies” are cured rather easily. If interest runs from the date of malpractice, and not the date of the verdict, all of a sudden the insurer suffers a loss by delaying as interest piles up. Currently the statutory interest rate in New York is 9%, so it is easy to see the significance of such a change.

Kevin also suggests that a type of health court might be appropriate. But New York has experimented with a similar format in the past, and it caused even longer delays and ultimately failed. These were malpractice panels that included a judge, an attorney experienced in handling malpractice cases, and a doctor from each specialty that was sued. If there was a unanimous finding, the finding would go to the jury.

The first, and most significant, problem was finding doctors to sit on these panels, which is what caused years of delay to an already protracted litigation system.

The second problem was that, unlike jurors, there was no way to question panelists regarding any biases they might have, the way a juror might be questioned.

The third problem was that witnesses did not appear before the panels and there was therefore no cross-examination. Submissions were made confidentially, and a short hearing was held that might have lasted an hour, at most. This format made it impossible to resolve disputed issues of fact.

The fourth problem arose when, if a unanimous panel finding went to the jury, the losing side would invariably subpoena the doctor that appeared, and then cross-examine the physician on the flaws in the hearing that took place. Essentially,the panel never saw a single witness and was therefore unable to resolve disputed factual issues. This, in turn, made it even less likely that doctors would want to sit on panels.

The end effect was years of delay, more expense, and more complicated trials.

The final suggestion Kevin made was a “No Fault” type of system. But No-Fault as it applies to car accidents is already problematic as insurers do notorious quickie exams to deny coverage, and repeatedly claim that injuries the victim has, that they had never complained about prior to the accident, were pre-existing and not caused by the accident. Since most malpractice cases start with someone already ill or injured, you can expect the insurers to fight just as hard against the patients. The difference is that the fight will be so expensive for the patient that finding an attorney to handle the matter may well put a quick (and unjust) end to the issue.

Jury verdicts often get a bad rap, but that is because the verdicts people most likely see are the ones in the newspaper. They are in the newspaper, of course, because they were unusual.

But a survey of 594 federal judges back in1999 didn’t agree with that perception. The survey, done by the Dallas Morning News and Southern Methodist School of Law, found that:

* 91% believe the system is in good condition needing, at best, only minor work;
* 96% said they agree with jury verdicts most or all of the time; and
* Nine out of 10 judges said jurors show considerable understanding of legal issues involved in the cases they hear.

In fact, research has shown that bias in the courts on malpractice cases, to the extent it exists, is favorable to the medical profession, not the plaintiffs that have brought the suits.

So, I think that the current system can be tinkered with to make it more efficient by encouraging quicker resolution of cases. But it’s a mistake to think that juries can’t resolve cases fairly.

Eric Turkewitz is an attorney who blogs at the New York Personal Injury Law Blog.

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