August 18, 2011
Only 1 in 5 Medical Malpractice Cases are Successful
The Associated Press reported yesterday that “Only 1 in 5 malpractice claims against doctors leads to a settlement or other payout, according to the most comprehensive study of these claims in two decades.” This confirms the up hill battle that we’ve seen with medical malpractice patients. Juries tend to give doctors the benefit of the doubt – even with gross errors.
Of course, the insurance company backed propaganda/ads you see on TV claim that there are “runaway juries” and that we need more “tort reform.” The reality is that insurance companies will continue to advance their agenda to limit the rights of people in exchange for more and more profits. Accountability cuts into their bottom line.
The AP article restates that “just a tiny fraction of the patients harmed by medical mistakes actually file claims.”
So does the fact that only 1 in 5 medical malpractice cases actually result in some type of recovery mean that there are a lot of frivolous lawsuits?
Not at all. It’s much too expensive to bring a frivolous lawsuit. In Oklahoma, a doctor must review the file and advise the attorney handling the case if they think malpractice has actually occurred. The attorney then signs an affidavit that is filed with the petition.
This relatively simple step can cost thousands of dollars. After the lawsuit is filed, depositions will also need to be taken. Doctors typically charge by the hour for this type of thing. It’s not uncommon for a doctor to charge $1000/hour for their time. Throw in the cost of a court reporter, and several depositions (for different experts) later, and it’s not uncommon for the cost of trying a medical malpractice case to be more than $40,000.
Remember that malpractice attorneys handle cases on a contingency fee basis. They are also advancing all the costs in the case. Attorneys aren’t going to spend that kind of money on a fruitless endeavor.
August 16, 2011
Nicked Bile Duct During Gallbladder Surgery
I had gallbladder surgery six months ago. The doctor that performed the surgery ended up “nicking” by bile duct. Is this medical malpractice?
Probably not. A nicked bile duct during gallbladder surgery is a risk of the surgery itself. However, failing to diagnose the nicked bile duct can result in a medical malpractice
June 8, 2011
Hourly Cost For Medical Experts
What’s the hourly cost for a medical expert to review a medical malpractice case?
It can range from $150 to $1000/hour. It really depends on what type of medical expert is reviewing the file.
For example, I have a dermatologist lined up to review a burn case. He charges $400/hr. Note that a “certificate of merit” is required to file a medical malpractice lawsuit in Oklahoma. This just adds to the cost of litigation and is generally unnecessary. It would be foolish to file a lawsuit without first having a medical professional review the case.
May 13, 2011
Personal Injury Accidents & Medical Malpractice: Settling vs. Trial
Jonathan D. Glater at The New York Times wrote an interesting article on a study comparing settling cases vs. going to trial. The study was based on 2,054 cases that went to trial from 2002 to 2005. The study looked at the dollar amount offered to settle vs. the outcome of the trial.
Notable highlights:
- According to the article, defendants made the wrong decision by going to trial in 24% of cases surveyed while plaintiffs were wrong in 61% of cases
- “On average, getting it wrong cost plaintiffs about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the costs were much greater: $1.1 million”
- The findings suggest that lawyers may not be explaining the odds to their clients—or that clients are not listening to their lawyers”
- Concerning the lawyers, the study tried to account for factors like years of experience, rank of a lawyer’s law school and the size of the firm, but the most significant factor was the type of case. On the plaintiff’s side, contingency cases were the most common while the defense side errors were generally cases involving unavailable insurance coverage
My guess at the errors in judgment: That the parties made educated guesses and were willing to go to trial. But, the parties may have also gotten too involved in the case with an “all or nothing” approach.
From what I’ve seen, settling is the safest avenue for all parties involved (both the plaintiffs and the defendants). Obviously, that’s not always available. I like how settling puts both parties in the driver’s seat as opposed to letting a jury or judge decide your fate. The uncertainty of litigation for a client can be a determinative factor. Time constraints are another factor.
It’s interesting that the most common cases involved on the plaintiff’s side were contingency cases. The vast majority of our clients prefer us to work on a contingency basis. The client has already suffered a legal wrong, and putting the risks of litigation on the attorney spreads their risk.
February 8, 2011
Medical Malpractice “Mess” and Mediation
I found this recent article, Mediation Could Help Remedy Medical Malpractice Mess, and the comments following the article to be largely misguided.
The article states/argues that mediation should be mandatory in our court system. Their reasoning for requiring mediation by law:
For one thing, plaintiffs may not even know mediation is an option. And lawyers, the main referrers for mediation, and aren’t necessarily big fans of it.
Um, plaintiffs aren’t aware mediation is an option? Seriously?
At least in Oklahoma, most personal injury and medical malpractice cases that are tried are actually brought before a mediator. The ones that go to trial are the ones that couldn’t get settled. According to a United States Justice Department study, about 97 percent of civil cases are settled or dismissed without a trial. How do you think they get settled?
Both sides have plenty of incentives to settle a case. I think the main reason is uncertainty. It’s certainly hard to predict if a jury is going to come back with a big or small verdict. It’s stressful for the individual people (the clients) involved. It’s also expensive to try a case. It can easily cost $40,000 to try a medical malpractice case. It costs a lot of money to have doctors review medical files. Those doctors, in turn, charge a lot to have their depositions taken and for their time to testify.
There are five comments on the article. I’ll go ahead and mention them all:
A judge commented about recommending a similar approach.
In Oklahoma, we have often have judges order mediation unless it can be shown that it would not serve any purpose (so this is a non-issue).
The second commenter:
A doctor mentions an interesting blog post he wrote on why our medical system is superior to not having one.
Definitely. A system that limits accountability is also worse – but that’s what a lot of people (actually companies) are advocating for. Companies can save a lot of money if they are not held responsible for their actions.
The next comment:
How about this: Stop paying punative damages to the plaintif or their attorneys. If we stop paying these enormous awards to plaintifs and attorneys, much of the allure of whimsical lawsuits goes away, and with it most of the silly gold-digger lawsuits.
Guess what? The vast majority of lawsuits have merit. How often do you actually hear about jackpot justice? We don’t even know what the McDonald’s coffee case settled for (out of court). Sure there was a big verdict – it wasn’t enforced. What about the cases that have merit? Should these be severely limited?
The next comment:
Mediation is very effective, so long as liability is clear.
Not really. Insurance companies don’t care if liability is an issue. It’s all about their bottom line. We tried a case a few months ago where the insurance company accepted liability. The only thing the jury could consider (and hear) was the total damages for the injured party. The defendant’s insurance company had no interest in going to mediation and insisted on offering barely anything for the medical bills (let alone anything for pain and suffering, lost income, and future pain and suffering). Settling for a particular dollar amount vs. trying mediation vs. going to trial is a straight business decision for insurance companies.
The next comment:
Mediation is a Very Good Thing. “Lawmakers” telling local communities that they no longer have a right to trial by jury of their peers violates human rights that have been around for almost 800 years. When the government tells the courts how they may or may not rule in disputes, we’ve sacrificed freedom on behalf of big business once again.
Definitely. Big businesses like to forget about (or when profitable, avoid) the U.S. Constitution.
That’s enough ranting for one day. I’ll leave the article’s title about the “malpractice mess” for another day.
January 3, 2011
Medical Malpractice lawsuit = shoddy medical care + something else
A while back I read Blink: The Power of Thinking Without Thinking by Malcolm Gladwell. The book takes a look at snap judgments, the decisions we make in the “blink” of an eye. It also compares snap decisions with slow analytical decision making. He opens with a discussion about a certain sculpture. All the evidence, such as testing the material, shows that the sculpture is authentic. This is contrasted to a group of experts who immediately thought something was wrong with the sculpture and questioned its authenticity. They couldn’t put their finger on it, but something didn’t seem right. The first word that popped into the mind of one of the experts was “fresh.”
So, were the people making snap judgments about the statue’s authenticity correct? They were indeed. After a year of testing, it was determined that the sculpture was in fact a fake.
Besides being a good storyteller, Gladwell discusses the likelihood of a doctor getting sued for medical malpractice. He gives the example of you, the reader, working for a medical malpractice insurance company. You’re given two choices to decide how prone a doctor is to committing medical malpractice. Do you examine the doctor’s training and previous records to see how many errors he or she has committed over the last few years? Or, do you listen in on a brief conversation between the doctor and a patient?
According to Gladwell, listening in on the doctor/client interaction is a much more accurate way to determine the likelihood of getting sued than where the doctor went to school and how error prone he or she is.
Close analysis of malpractice lawsuits shows that there are highly skilled doctors who get sued a lot while doctors who make plenty of mistakes may never get sued at all. At the same time, the overwhelming number of people who suffer an injury due to the negligence of a doctor never file a malpractice suit. In other words, patients don’t file lawsuits simply because they’ve been harmed by shoddy medical care. Patients file lawsuits because they’ve been harmed by shoddy medical care and “something else” happens to them.
Gladwell states that the “something else” is the human interaction element. How was the patient treated on a personal level? Basically, it comes down to this: people don’t sue doctors they like.