A couple of weeks ago, Dr. Kevin Pho published a blog in which he argued that medical malpractices lawyers do not help improve patient safety. My mentor and good friend, Brian Nash, (a medical malpractice lawyer) posted a counter-blog, disputing the validity of Dr. Pho’s conclusion. As a result of these two postings, the two author’s agreed to post Brian Nash’s piece on Dr. Pho’s website – KevinMD.com. This posting, Open dialogue on medical malpractice and patient safety led to an amazing, extensive, thought-provoking and still ongoing public discussion about the role of physicians, lawyers and patients in promoting patient safety. The last time I checked, this discussion generated just over 190 comments!
Although many topics were addressed during this discussion, I could not help but notice an underlying sentiment of distrust with respect to lawyers in many of the comments posted in support of Dr. Pho’s blog. Statements like “lawyers don’t care about the quality of their cases as long as they make money,” or “the medical malpractice system is failing because most cases are filed over bad outcomes and not medical negligence.” Such comments reflect an overall attitude that medical malpractice lawyers are the reason why there is an alleged nationwide medical malpractice crisis.
This argument is terribly misguided and, frankly, based on a number of false assumptions about the practice of law. In part, the misunderstanding stems from the fact that most critics are not lawyers and, thus, not familiar with a lawyer’s everyday incentives, interests, limitations, and obligations. Although a law review article would be more befitting this subject, the following discussion outlines a few considerations that should hopefully illuminate what drives a lawyer’s analysis with respect to the type of cases that should be pursued.
Let me begin with the consideration that is most important to me. Lawyers, unlike most other service providers in the workforce, are bound by a code of ethics. If they don’t follow it, they can be disciplined and even disbarred. It is as simple as this: in each state, lawyers are subject to a plethora of proscriptive and prescriptive rules. For example, in Maryland, each lawyer must comply with the rules of professional conduct. These rules govern virtually every aspect of legal practice (i.e. conflicts of interest, acting in good faith, etc). In addition to these rules, Maryland lawyers must also abide by local rules of court, the rules of civil procedure and a plethora of cases dictating how lawyers should act. In this matrix of Rules, many rules directly or indirectly prohibit a lawyer from making frivolous claims, pursuing claims without a good faith basis, and taking unsupported positions during the course of litigation, among other things.
In the District of Columbia, relatively recent legislation requires the giving of a substantive (i.e. not just – I’m going to sue you) notice to the potential defendant(s), which outlines the essential theories of the claim. Failure to give some notice in timely fashion can – and often does – result in the dismissal of a lawsuit in which this notice was not given. Once filed, a patient-plaintiff is, in essence, bound by the same requirements of proving his/her case as in Maryland, but more on that later.
A cynic may argue that the rules are no good if lawyers are not willing to live by them. The assumption that most lawyers don’t care about the rules of professional conduct is just that, an assumption – and a misguided one at that! Most of us care deeply about our clients. Most of us are very proud to be lawyers, and the vast majority of us diligently and religiously comply with our ethical obligations. You don’t have to believe me; call your state’s bar association for studies directly on point.
As in any other profession, a few bad apples give us all a bad name from time to time. When this happens, other lawyers are quick to initiate disciplinary actions. In medical malpractice cases, the persons with the greatest incentive to report unethical behavior are the defendant health care providers and their lawyers. As you may suspect, reporting bad behavior in an adversarial system is a bit more incentivized when compared with reporting among physicians, who practice in a collaborative and non-adversarial environment (i.e. the same hospital, practice group or health care system).
The Financial Realities
In addition to various ethical constraints, I am convinced beyond all doubt that a lawyer would have to be completely out of his/her mind to pursue a meritless medical malpractice case. Don’t forget that a law practice is a business just like any other business. The vast majority of plaintiff medical negligence lawyers practice in small firms. Operational and the litigation costs are very high (if you know physicians who testify as experts in medical malpractice cases, for plaintiffs or defendants, ask them what their hourly charge is to review medical records, give depositions and testify in court. It would be enough in an of itself to make you reconsider your career choice). Generally speaking, most medical malpractice cases (conservatively estimated) require between $50k and $100k to bring to trial. Additionally, each lawyer can only pursue a small number of cases to insure diligence, and yes, compliance with the ethical rules of professional conduct. Keep in mind that the vast majority of medical malpractice cases are contingency fee cases, which means that the law firm (where permitted by law and ethics) advances all of the costs. None of these costs are recouped if the case is lost.
The obvious question – or at least what should be an obvious question is: why would a lawyer want to invest his/her money in a meritless or questionable case? The simple economic reality of a medical malpractice firm is that it can never afford to pursue frivolous or meritless claims. Pursing even questionable cases is a good way to go bankrupt. When a frivolous case is filed, guess who is waiting on the other side of the aisle ready to devour it and the lawyer who filed it? Unlike plaintiff lawyers, defense lawyers get paid by the hour. Their spending power on litigation is enormous since they have the financial backing of multi-million dollar insurance companies and/or self-insured institutions. Because defense lawyers get paid by the hour, they have every incentive in the world to use every known legal tool and maneuver to increase the costs of litigation and defeat the claims against their clients.
Simply put, survival of the fittest (and the smartest) is the name of the game when it comes to choosing cases for litigation. Every plaintiff’s lawyer asks this question more than any other before signing a case: just how strong is the evidence of negligence? The last thing a lawyer wants to do is spend thousands of dollars on a case that is frivolous and destined to fail. When handled by lawyers who are experienced in handling cases of medical negligence/malpractice, if case is in litigation, believe me, it is as far from being frivolous as it can get. This doesn’t mean the patient/plaintiff always wins. It simply a matter of common sense – experienced medical malpractice lawyers screen cases vigorously and don’t (and certainly can’t) make a living out of filing non-meritorious lawsuits.
Assuming that a lawyer foolishly chooses to represent a client with a weak or meritless claim, there are still a number of procedural requirements that are purposely designed to prevent such claims. In most states, a number of procedural/jurisdictional thresholds must be met before a case can even be filed in court. Such requirements are specifically designed to weed out non-meritorious cases.
For example, in Maryland, a lawyer must obtain a very specific certificate and report from a qualified physician, specifying that the defendant health care provider breached the standard of care (failed to act reasonably under the circumstances) and that this breach of acceptable medical standards of care caused the patient-plaintiff’s injuries. The case must first be filed with a special arbitration commission and have certifying expert certificates and reports before it can be filed in court. Throughout litigation, a plaintiff is required to obtain supportive, competent opinions from a number of medical experts. These experts cannot just generally or vaguely support the patient-plaintiff’s claim. They must specifically establish 1) what the defendant health care provider should have done to comply with the standard of care, 2) that the defendant health care provider breached the standard of care, 3) that the breach in the standard of care caused Plaintiff’s injuries, and 4) what patient’s injuries actually are – not just sheer speculative damages. Such testimony can not come from the lawyer, his/her client, or a lay person; it must come from other physicians. Medical malpractice litigation is not possible without the participation of health care providers, who are willing to testify as experts on behalf of the patient. As if this was not enough, an expert’s testimony cannot be based on a guess, speculation, or conjecture. Each expert opinion must be expressed to a reasonable degree of medical probability, and it must have a scientific basis. These procedural requirements are just the tip of a very large iceberg designed to prevent meritless cases.
Don’t Buy Into the Myths
The simple truth is that real (those who know what they are doing in this specialty area of law) medical malpractice lawyers have very little – if any – incentive to pursue frivolous, weak or questionable cases. Such cases are expensive, they must be supported by other physicians, and they must survive the rigor and scrutiny of litigation.
I often hear people say that most medical malpractice cases are filed because of bad outcomes and not because of real medical malpractice. I am utterly convinced that such a statement could not be further from the truth. If it were true, most, if not all medical malpractice lawyers would be out of business. That’s the hard, cold reality. Don’t buy into the myths that are many times at the core of this s0-called medical malpractice crisis debate.
Have you been a party in a medical malpractice/negligence lawsuit? Have you been a juror in a medical negligence case? Even been a witness in these cases? What has been your experience? Share your story – let’s get to the real truth of issues that should be at the core of the “discussion” – “debate.”
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