Thursday, February 06, 2003
About a year ago I served as a juror in a medical malpractice trial. Since then I've been haunted by it, and I wanted to just write about what happened. I was a holdout, and I caved. At the time I thought my reasons were sound, but now I'm not sure. So I'm going to write about the case and some things that could've changed the outcome, so that if I WAS wrong, maybe this'll be of some tiny help to you on behalf of some future victim of malpractice.
The case was simple: A stroke-victim mother of four (hereafter RG) with a history of high blood pressure showed up in a doctor's office complaining of nausea and amenorrhea. The doctor says he ordered a pregnancy test that came up negative. This was a point of some contention but the jurors all believed the test had been done. Doc put RG on blood pressure meds that aren't known to be harmful to a pregnant woman but wouldn't be prescribed if the condition were known.
About a month later RG appears at the same office, sees a Physician's Assistant who fails to notice on the chart that the last menstrual period was six months ago and proceeds as if oblivious to the possibility of RG being pregnant.
Some months later RG's water breaks. About 24 hours (!) later she arrives at an emergency room with a small foot sticking out of her. The baby dies in delivery. RG sues, arguing that the failure to detect her pregnancy led to the loss of the baby.
Big Thing Plaintiff's Atty Got Wrong #1: Each side presented two doctors. It quickly became clear that one on each side was testifying as to standard of care, and one on each side was testifying as to cause.
They weren't introduced as "our standard-of-care" witness, but this was obvious enough. Defense scored a lot of points on the Plaintiff's cause witness by playing on the fact that he spends most of his time teaching and doing research and little time working with patients when not teaching. This made a great impression on most of the jury. I argued that this was silly--that the cause witness was there as a scientist and that it actually enhanced his credibility that he spent all his time doing research on high-risk pregnancy. I maybe turned one or two jurors on this point, at most. This line of argument would've been far more effective coming from the plaintiff's attorney. She instead fought on the ground the defense had chosen, trying to defend her really impressive scientist from the accurate but irrelevant charge, rather than pointing out how irrelevant it was.
Big Thing Plaintiff's Atty Got Wrong #2: She never got her cause witness to simply come out and say something like "It's my opinion that, to a reasonable degree of medical probability, the baby would've been delivered healthy had RG's pregnancy been detected." There was a lot of stuff about what happened and why, about the dangers of breech presentations and decreased oxygen flowing through a damaged placenta and the heightened risk of same due to hypertension. He never came out and simply said, however, the thing that the plaintiff was supposed to prove. I was left on a tiny minority (4 vs 8) arguing that you he didn't say it because it was obvious. As I'm not a doctor, I didn't win any converts with this line of reasoning. We all went over our notes and couldn't come up with a clear statement from the plaintiff's cause witness like the one I wrote of at the beginning of this graf. Eventually I agreed that if he didn't say it, it's because he couldn't say it.
Big Thing Plaintiff's Atty Got Right, But Didn't Count For As Much As One Would Hope #1: Plaintiff's s.o.c. witness enumerated for us several specific instances in which the defendants fell below the standard of care. "Failure to have the patient lie down during an abdominal exam falls below the standard of care." "Failure to note the last menstrual period on the chart falls below the standard of care," etc. Defense's s.o.c. witness went down more or less the same list arguing that this or that did not fall elow the standard of care. But he didn't hit every item on the list. Specifically, he didn't refute the two examples I gave. You'd think this would, all by itself, settle the issue of negligence and let us move right on to cause, but it didn't. The final vote was 9-3 on that point, and we had to fight like hell to get that ninth vote. One girl was just smitten with the doctor and wouldn't hear a word against him, and was further convinced that RG was just a gold-digger. (She had no trouble recognizing the negligence of the female physician's asst., however.) I don't know what on Earth the other two were thinking. It seemed like simple black-and-white to me. Plaintiff's doctor says "A, B, C, D, and E" are true. Defense says "A, B, and D" are false. In any case, C and E are obviously true, and either alone is enough to support the claim of negligence. How did
this happen? Read on...
Big Thing The Defense Got Right: Their s.o.c. doctor explained that "There's no standard of care for documentation." The meaning, as I understood it, was that whatever the standard of care requires in terms of things you do or don't do, it makes no explicit demands in the area of documentation. If you can somehow remember everything you need to know about a particular patient, you're not required to document anything. Somehow, in the jury room, this got badly warped--to the point that any failure in care that was aggravated by sloppy documentation was excused. ("She didn't notice the LMP on the chart! That's a failure to reach the s.o.c., pure and simple." "Aha! But the
standard of care doesn't address documentation, and that's documentation!") If you ever hear a defense witness say anything about how standard of care doesn't address documentation and you figure that a juror can't possibly misunderstand this, let me assure you that more than one juror did. I had a devil of a time persuading one to take my view, and never did get through to another. If Defense gets that line off unanswered, he's hit you below the waterline.
Big Thing The Plaintiff Got Right, But Didn't Count For As Much As One Would Hope #2: She made a big deal about how both of her doctors made frequent court appearances, almost always (75% of the time) for the defense. To me, this said that doctors who'd normally take the defense's side were so appalled at this case that they suited up for the other team. I imagined that each side would have a list of doctors, with the most impressive ones at the top and the least impressive ones at the bottom, and they'd just go down their list until they found a guy who'd take their side, and that this meant that the plaintiff didn't have to go down the list much at all. Nobody else was much impressed by this. Plaintiff's attorney should've stressed this point in her closing arguments. (Is she perhaps not allowed to?) None of the other jurors even noticed this. They took it as a routine and uninteresting part of the introduction, about as important as where the doctor did his residency.
Huge Thing The Plaintiff's Attorney Just Couldn't Do Anything About: How on earth does a mother of four not notice that she's pregnant? I argued that she's poor and uneducated and that to her, a doctor is God, and this doctor said she wasn't pregnant so that settled the question in her mind. The rest of the jury, especially the mothers, were having none of it. I argued that they (the mothers on the jury) were themselves educated and articulate and not at all intimidated by doctors, and didn't properly appreciate the power of that kind of authority on someone like the plaintiff, but got nowhere. By this point, I didn't really believe it myself. Her water broke and she didn't get to a hospital until 24 hours later! This fact was the single most important thing in the trial, and it convinced most of the jury that whatever mistakes the physicians made, the vast bulk of the blame lay with the plaintiff anyway.
Ultimately, we found for the defense. By votes of 9-3 and 11-1 we found the doctor and the physician assistant, respectively, negligent. By votes of 12-0 and 9-3 we found that the doctor and physician assistant's errors, respectively, were not shown to have led to the plaintiff's injury. (Doc's only s.o.c. failure was botching an abdominal exam that wouldn't have detected the pregnancy even if he'd done it properly. The PA was really the one on the hook here.) As I wrote, I'm the one who caved. We quickly found both defendants negligent, very quickly found that the doctor's negligence was irrelevant, and then swiftly deadlocked at 8-4 on the question of whether the PA's negligence caused the injury.
What seemed obvious to me--that of course detecting the pregnancy meant that the baby would in all likelihood be delivered healthy--wasn't at all obvious to 8 of my fellow jurors, which included a known idiot but also included a handful that I'd grown to respect a great deal. Persuaded that most of the blame lay with the plaintiff, and that it wasn't even clear from the record that, had he been on the jury, the plaintiff's cause witness would've sided with the plaintiff, I caved.
If you're still with me, thanks for reading.
See? Juries can be a microcosm of society, from the idiots, to the smitten, to the ones haunted by what they did or did not do. By the way, the first thing I thought when I read the facts of the case was: How can this lady not know she's pregnant, regardless of what the doctor's office said. An obvious tragedy -- losing a child -- but what did she think that moving lump in her belly was? Too many burgers? I would have turned the case down on that point alone. Great email, though.
The public doesn't want to do away with us. When I'm sitting in a deposition or in trial with a client, I'm the ONLY friend he's got. Plaintiff or defense, that's a truism.
could be manipulated (by a county clerk or an evil judge, for example). Peremptory challenges could be used to illegally discriminate based upon race or other haracteristics To the extent, further, that jury selection devolves into gamesmanship between the parties involved, that morally debases a system of selection that would, under best conditions, yield a random sample of local individuals."
I get nervous at inherently subjective terms like"morally debased," simply because that term means different things to different people. But the realm of jury selection is a relatively even playing field for each side. While there is "gamesmanship" on both sides as to the composition of a panel, the bottom line is that you just don't know what you've got till they return a verdict. So, it'a all voodoo to a large extent.
The more salient point is that the entire litigation is gamesmanship. The theory of lawsuits is that both sides do their jobs, theoretically just as zealously and competently, and justice will result in the form of the jury's verdict. Practice may differ from theory in individual cases, but the theoreticians would argue that, looking at the system as a whole, there is substantial justice. I'm not sure I agree, having seen some wacky jury verdicts and judicial opinions in my time, but that's the theory, anyway.
She also says: "Doctors are often in the uncomfortable situation of having to make terribly important decisions on very short notice and with incomplete data. Sometimes they decide wrongly. Sometimes they simply screw up. It is not humanly possible to do *anything* as a profession without making mistakes." Lawyers are often in the same position, whether in trial or during the lengthy pretrial phase of a case. If other lawyers evaluate possible med mal cases as I do, then mistakes in judgment, reasonably explainable mistakes, mistakes that didn't cause any injury, or even mistakes that didn't cause enough injury [read: catastrophic injury] are not likely to be the subject of litigation. Given the time involved, the extraordinary expenses, I, at least, can only take the very best cases, where the screw-up is really bad, and where it caused horrible injury: brain damage, amputation, paralysis, death, and similarly serious injuries. You will just lose your shirt eventually if you keep pushing the marginal cases. And understand, marginal is not frivolous; there's a good faith cause of action, but there's too many problems proving the negligence, or the damages are not serious enough to justify the expense, etc. It's hard to tell a potential client who states a cause of action that the case is not good enough, but I have to do that all the time.
She also contends: "And, honestly, it seems to me that the deck is stacked in the plaintiff's favor by the mere stage-setting in every med-mal case. You have on the one hand someone who has undoubtably suffered [I am ignoring cases of pure fraud], whether her suffering was caused by the negligence of the defendant(s) or not. And on the other hand there is someone or something with lots of money, which can assuage her suffering. The obvious course to an awful lot of people is just to take the money and give it to the plaintiff. Suffering person, wad of cash -- hey, you connect the dots." Believe it or not, at least in the three jurisdictions where I have practiced [Maryland, D.C., Tennessee], the statistics show the deck is stacked tremndously in favor of the doctor defendant. Something like 80 to 90% of the cases that go to trial result in a verdict for the doctor/hospital. There is, in the jury's collective mind, a reluctance to believe that this medical practitioner, in whom patients regularly place their lives, would so cavalierly screw up. This mindset going in is a main reason I limit malpractice cases I take to those that are the worst examples of negligence and damages. It's really hard to overcome the jury's unwillingness to believe such a thing could happen.
She also asks about punitive damages, why they are necessary, and why the plaintiff should get the proceeds. First, punitive damages are very seldom awarded. Punitive damages, which are assessed to punish the worngdoer and to send a message that such conduct will not be tolerated, must be proven by clear and convincing evidence. Clear and convincing evidence is a different and higher standard than preponderance of the evidence. It means that the defendant's wrong, if any, must be so clearly shown that there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. There are four ways to prove punitive damage conduct: A person acts intentionally when it is the person's purpose or desire to do a wrongful act or to cause the result. A person acts recklessly when the person is aware of, but consciously disregards a substantial and unjustifiable risk of injury or damage to another. Disregarding the risk must be a gross deviation from the standard of care that an ordinary person would use under all the circumstances. A person acts maliciously when the person is motivated by ill will, hatred or personal spite. A person acts fraudulently when: ( 1 ) the person intentionally either misrepresents an existing material fact or causes a false impression of an existing material fact to mislead or to obtain an unfair or undue advantage; and (2) another person suffers injury or loss because of reasonable reliance upon that representation. The italicized recklessness standard is most often what we look to in med mal or negligence cases. I do not have data, but I would be surprised if punitive damages were awarded in more than 5% of the personal injury-type cases filed. It's really hard to prove [as it should be], and judges are verycareful about letting punitive damages go to the jury. I've had punitives go to the jury once in 16 years.
Why do plaintiffs get the proceeds instead of the state? Well, because that's how it's always been. Also, the plaintiff is the plaintiff; he/she is the one making the lawsuit. If the state had an interest, the state would be a party in the case, I suppose. Just speaking from common sense, no plaintiff is going to push for punitive damages, which can be a distraction from the compensatory aspect of the case, if the plaintiff is not going to receive any of the punitive damages that may be awarded. There have been many cases where I did not pursue punitives because the conduct did not seem egregious enough or it would take the focus away from the meat of the case.
The general public, and perhaps doctors and business owners, don't really understand that punitive damages are seldom awarded, and can be avoided if they just do the best they can. Frankly, that's probably the best way to avoid getting sued altogether.
Meanwhile, the Washington Post says that "It is an embarrassing but no longer well-kept secret that despite health care spending of about $1.3 trillion a year -- including about $25 billion in federally funded research -- many Americans receive medical care that is not terribly good."
Maybe we're seeing more big verdicts because juries are now becoming aware of these problems, and maybe this is their way of saying, "clean up your act and provide better care." If true, we shouldn't be ignoring that message, and we sure shouldn't be rewarding doctors and Big Insurance for malpractice by imposing liability caps.
Wednesday, February 05, 2003
He also believes that "Jury manipulation is a scandal. Jury consultants, corrupt voir dire, people getting themselves excused, the lottery mentality, Madison County, Illinois. When was the last time people like me were on a jury?" I don't know what kind of person he is, but assuming that he's an upright citizen who wants to do the right thing, most people on most juries are just like that. Contempt for those who do their duty on juries is unfortunate, and tends to oversimplify the composition of juries. As to jury consultants and "corrupt" voir dire [note: how do you do corrupt voir dire?], I have yet to see a lawyer doing voir dire or a consultant who can accurately read the minds of the venire panel, when choosing the jury. At the end, it still comes down to gut feel and hoping for the best, whichever side you're on.
This emailer also looks at a personal injury lawsuit as a coerced transaction -- because Big Insurance will not settle the case -- and trial lawyers as exploiting the coerced transaction, apparently because they charge a contingent fee. Without that lawyer, who's willing to take on the case, spend potentially a fortune out of his pocket, and risk not getting any fee or expense reimbursement, and is willing to do that for years on end on any particular case, there wouldn't be any case, and the negligent party gets a "get out of jail free card." That's not exploitation, that's charging a reasonable fee, based on the complexity of the case and the risk that lawyer is taking.
Thanks for the email.
Free form association leads to these thoughts:
(1) One assumes that doctors, who have to pay high premiums, have passed that cost to their patients by charging more for their services. Imposition of liability caps will not cause the doctors to lower their rates, based on doctors in states that have enacted liability caps.
(2) States that have caps have not seen a reduction in the premiums for malpractice insurance. Their argument is that in those "capped" states, the premium has not risen as dramatically as in those states without caps. Thus, imposition of caps will not cause a premium reduction, and in fact malpractice insurance premiums likely will continue to increase. All while the numbers of cases are remaining flat, and not increasing.
(3) Why are we considering caps on liability as to this type of negligence action, where there are no caps as to any other type of negligence litigation?
(4) why don't the doctors worry more about being better doctors and policing themselves to get rid of bad doctors, rather than look for a way to avoid responsibility for their negligence? The rest of us must take responsibility for our acts. Lawyers can and are sued for malpractice, and hit with big verdicts. Why are the doctors so special?
(5) Why are the doctors acting as shills for Big Insurance, rather than raising hell with the insurance industry for premium increases that have no basis in published data. And,
(6) Why won't Big Insurance release raw data, so that watchdog organizations can analyze Big Insurance actions that smack of price-fixing, improper investment strategies, and arbitrary premium increases.
I don't see how a cap on non-economic damages makes it more difficult for plaintiffs "to see the inside of a courtroom" (that is, if the lawyer is still willing to represent him/her without the possiblity of the gargantuan payoff). It only reduces the payout from a jury verdict in favor of the plaintiff. Pain and suffering would still be unlimited. Reducing available causes of action, however, would make it more difficult; or compelling arbitration before litigation.
First, the proposal is to limit, or cap pain and suffering to $250,000, as I understand it. Here's a hypothetical to illustrate the chilling effect on plaintiffs' lawyers taking cases as a result of caps on pain and suffering damages: Joe Lawyer takes a med mal case. Hypothetically, it involves a man who died as a result of negligent emergency room care, so the medicals are minimal. He's dead, so there are no additional medical expenses. He knows he'll have to finance it, i.e., put up the expenses, because his client has no money, and certainly not the tens of thousands it takes to get these types of cases to resolution. So, let's say that he handles the case for four years, not unusual in med mals. Let's say he ends up spending $95,000 to go to trial, also not an unusual figure, given the hoops the defense makes us jump through [experts, depositions, more experts, travel, per diems, more experts, more depositions, and so forth]. I use a general rule of thumb that my expenses should be no more than 10% of the anticipated recovery. Based on that factor alone, Joe Lawyer should not take the case if there is a maximum of $250,000 in pain and suffering available, because the risk is far in excess of the upside to client or lawyer. And since any lawyer who wants rock 'em and sock 'em but not lose her shirt will try to figure anticipated expenses v. anticipated recovery at the outset, not many lawyers will want to take these cases, because they might win the battle, but lose the war.
Moreover, the bigger the case, i.e., the more egregious the negligence, the more catastrophic the damages, the harder the defense will probably fight it. Thus, any really significant case will probably end up not being taken, because the plaintiff will work -- and spend -- himself to death for a mediocre recovery. What caps mean ultimately is that the defense side, which has almost unlimited resources, will simply try to outspend the plaintiff, who is very limited in resources in most cases.
In this regard, read "A Civil Action," by Jonathan Harr, for a fabulous exposition of how defendants will try, and in this case, succeed, in crushing a plaintiff's lawyer under the weight of expenses [if the plaintiff's lawyer allows it], especially in the really big cases. A review of the book can be found here. A philosophical review of the movie, unfortunately posits the notion that to be effective, a trial lawyer must be a cold, calculating, emotionless shark. Not surprisingly, I disagree. In Jan Schlichtman's case, he just lost any sense of objectivity, an observation with which I bet he would agree.
Tuesday, February 04, 2003
Sorry about the misunderstanding.
In Tennessee, we are not allowed to argue to the jury a specific amount of damages. In fact, there is one case where the plaintiff was reversed simply because he had said to the jury that the case was very significant. While every now and then we get a seven figure verdict, it's not often. I truly believe that a jury is not going to award any damages unless liability is crystal clear and damages are profound and catastrophic.
My sense is that you will see really big verdicts where the jury gets mad at the defendant, based on what that defendant did or didn't do. And while inflaming a jury is not supposed to happen, both sides try to do it routinely. That said, unless you've got the goods in terms of evidence, the jury's not going to award you money just for the hell of it.
My experience in Maryland, D.C. and Tennessee -- all where I have practiced in the last 16 years -- is that juries are pretty stingy, unless you prove a good case.
The point is that "trial lawyers" feel like they have to contribute to democrats. The way I see it, it's Big Insurance that's trying to substantively change the law, making it harder for regular people to see the inside of a courtroom. The "trial lawyers" are merely responding to this threat to (1) the rights of their clients, and (2) potentially, their livelihood.
I hope it's not in bad taste to admit that we lawyers have a significant stake in this debate. Altruistically, I don't want to see these incursions into time-tested rights. At the same time, I have to make a living. And when Bushie no. 1 makes it a major campaign theme [and now a major legislative initiative] to potentially put me out of business -- and for all the wrong reasons -- I think that the public ought to know what's really going on, at least from my side of the mountain.
Anyway, thanks for the email, David.
As a plaintiff's lawyer, I get my clients from word of mouth or advertising/marketing. Insurance defense lawyers have deals with carriers, and are referred matters for defense, usually once suit has been filed. If the sought-after consequence of tort limitation is to reduce the number of lawsuits filed, then defense lawyers will get fewer cases, make less revenue, and generally be less happy campers. It's really a Yin and Yang for them; without plaintiff's lawyers -- and the cases they file suit on -- defense lawyers are out of business. So, insurance defense guys and gals of the world, flock to our banner! The banner of righteousness!! [ahem, sorry about that; got a little wound up; won't happen again....]
Thus, regarding the guy who slipped on his ladder and won at trial because of the lack of warnings on the ladder, (1) the incident may or may not have happened at all, (2) the verdict may have been thrown out by the trial judge or reduced, (3) the verdict may have beed reduced or reversed by an appellate court, and (4) maybe there was a reason a jury, that heard ALL the evidence, found in favor o the plaintiff in that possibly-hypothetical case. There's usually more than one side to these cases, and if the defense lawyer who was surely beating up on this purported criminal was not able to sway the jury, then maybe there was something to the case that was not in the report you read.
One of the purposes of this Blog is to encourage readers to realize -- and believe -- that "Trial Lawyers" are not the boogeymen. Just as importantly, I realized just now, is to encourage people to have more faith in their juries -- a reflection of themselves -- than Big Insurance does.
Dave Roberts writes: "Given the profit margins in this insurance, why don't the trial lawyers of America form a consortium with doctors to self-insure the industry as a
whole? Why don't lawyers insist on public disclosure of settlements with bad doctors so other patients can avoid them?"
As to the first, Ithink it would be a great idea to team up with doctors, not only to reform malpractice insurance, but also to joint venture in order to hold Big Insurance's feet to the fire when they don't promptly and fairly pay doctors who treat those such as my clients. The reason one doesn't see such a get-together is the unfortunate -- and ill conceived -- notion of doctors in general that trial lawyers are their enemies. Not true. I tell any doctor that will listen that any self-respecting lawyer is not going to sue them unless (1) they are clearly and notoriously at fault, and (2) the patient's injuries are catastrophic in nature.
Maybe one day, the doctors will realize that we have a lot in common; for instance, both lawyers and doctors are held to a high standard of care, both may be sued for "malpractice," and neither profession is or ever will be perfect. The key -- with both professions -- is to winnow out the bad practitioners. The medical profession is notoriously bad at this task; example: their National Practitioner Database, that reflects the number of complaints, claims, judgments and settlements against doctors, is so highly conidential that I doubt I will ever see it. If the public had this information, then the doctors who are continuously sued [where there's smoke, there's fire?] might go find another way to make a living. I don't know about them, but I feel an almost sacred obligation to my clients, and I don't hold their lives in my hands, like the doctors often do. If you're just not good at doctoring, would you really want to stay in practice?
As to the second item, it is the doctors/Big Insurance that insist on confidentiality in settlements. I hate them. I have, however, allowed my clients to enter into them, because ultimately, the goal of the exercise is to get money damages for the client. If I can "show them the money" on the proviso that they remain mum about the settlement amount, it's in that client's best interest to do it. I agree that it's not in the interest of the overall landscape, however. I think that the defense feeling on it is that, with a confidential settlement, there is no quasi-precedential effect to that settlement, because no one but the parties knows what it is. Thus, by keeping a lid on the amount, they can keep a lid on the value of future settlements. For those of you who belong to ATLA, check out the October 2002 Trial magazine. I'd post a link to it, but it's members only, and I don't want to get in trouble.
[The jury] awarded these people this money because they felt as if they were going to get a cut off of it.
Morley Safer asked in response, "The jurors benefit? Is that what you're saying?" The unidentified speaker replied, "They benefit after court, and everything is over with, yes, sir ... under the table."
The African Americans feel like it's payback for disenfranchisement. And the rednecks, shall we say, it's like, 'Hey, you know, get back at' — revenge for the Civil War. And it's very easy to weave this racial conflict and this class conflict into a big money pot for the attorneys.
60 Minutes' response: "We stand by the story."
Putting these kinds of statements on national TV is incredibly irresponsible, and it certainly sounds defamatory to me. I hope they hit 60 Minutes for a fortune.
And, by the way, I have said this for years: don't comment on a verdict unless you were in the jury box -- or at least in the courtroom -- to see ALL the evidence. Most lawyers will tell you that juries work very hard to be fair and to do their job responsibly. You know, there were defense lawyers in that trial, and you can bet they were doing everything they could to get a zero verdict. The fact that the jury came back so high indicates that the liability and damages must have been catastrophic.
Final word on this. The Big Insurance types will tell you about the high verdicts, but they don't say a word when the judge or the appeals court reduces the verdict downward. In fact, I am told that in Bronx County, New York, juries routinely return big verdicts, and the trial judges just as routinely cut them down. There are plenty of safeguards -- maybe too many -- in the existing system to prevent a "runaway jury." Of course, for Big Insurance, there are never too many, because they NEVER want to pay a claim.
UPDATE: Bill Haltom, in the Tennessee Bar Journal , has some judicious warnings [click the link and then select Haltom's article over on the left hand side] for 60 Minutes' lawyers.
It seems that State Farm, the defendant's carrier, had ample evidence from its own investigation, that the case was a policy limits case. Nevertheless, it failed to offer the policy limits to protect its insureds, the defendants. When the jury returned a verdict in excess of policy limits, State Farm told the defendants that they ought to go ahead and put their home up for sale, to cover the amount of verdict that was excess over the policy limits. The defendants were driven to the brink of bankruptcy before State Farm paid the entire judgment. Then the defendants filed suit against State Farm based on their bad faith and fraudulent refusal to protect them by trying to settle within policy limits.
The bad faith case went on for 12 years, during which time, the plaintiff insureds proved that State Farm altered key documents to cloud the plaintiffs' case, and that State Farm also practiced bad business tactics targeted toward people who were less likely to sue – such as the elderly and minorities. The Utah Supreme Court, with only one dissent, affirmed a compensatory judgment of $2.6 million and a punitive judgment of $145 million.
Now, the U.S. Supreme Court has taken certiorari, and you should see the number of amici briefs. I count 21 briefs apparently on the side of the insurance industry, i.e., to limit punitive damages, and 3 from the plaintiffs' point of view. That looks like piling on to me.
The Christian Science Monitor reported on the case, but pretty clearly is defense oriented here: "As recent headlines indicate, there is no shortage of examples of juries zapping corporations and other deep-pocket defendants with massive punitive damage verdicts." Oh really? Then how come I ain't a ga-zillionaire? The fact is, it just isn't true that there is "no shortage." These types of verdicts are few and far between. If they represented 1% of the total numbers of verdicts rendered, then I'd be surprised. And anyway, shouldn't there be a little more outrage at State Farm's depressingly familiar bad faith and malicious tactics, all in the name of increasing corporate profits? Translation: screw the little guy, if we can make more money . That's why State Farm got zapped. The fact that they have taken the case to the U.S. Supremes demonstrates that they still haven't gotten the message. Which means that wronged plaintiffs will have to keep doing this till the carriers in general, and State Farm in particular, abide by their contracts and act in good faith.
The case was argued on December 11, 2002, so we should have a decision in the next six months or so.
Monday, February 03, 2003
CAPS WOULD BE UNJUST TO INJURED
John Day Commentary
Arthur Tucker Jr. had an enlarged
Arthur's doctors recommended that
he undergo a procedure in which his prostate would be treated with heat to
reduce its size.
During the procedure, doctors
inserted a heating element near Arthur's prostate gland. At some point, the
heating element slipped out of its original position, though it remained in his
body. Understandably, Arthur complained of excruciating pain to the nurse, who
responded, "Hang in there and be tough." His doctor left the room for
an hour, while the heating element caused severe internal burns. A month later,
his penis had to be amputated.
Big insurance companies want to
limit drastically Arthur's ability to sue for malpractice. Under the plan pushed
upon lawmakers by those companies, Arthur's recovery would be limited to only
"economic losses." That means Arthur would not have to pay for the
botched procedure, and would receive his lost wages during his recovery period.
But Arthur's most devastating
losses are noneconomic. He must face a lifetime of disfigurement, distress and
anguish. Under the plan pushed by big insurance companies, however, his
compensation for "pain and suffering" would be limited to $250,000.
Had Arthur been in his reproductive prime, his inability to conceive children,
not to mention his inability to enjoy relations with his spouse — called
noneconomic damages — would not be taken into account at all.
Under the scheme of so-called tort
"reforms," the value of Arthur's life is derived from an economic
bottom line — arbitrary, government-imposed caps set at the request of
insurers — while the pain, anguish and disfigurement suffered by Arthur is
worth practically nothing.
The big insurance companies' plan
does nothing to address medical malpractice. Instead, arbitrary caps penalize
the most severely injured patients with the strongest claims, such as Arthur
The Institute of Medicine reported
in 1999 that as many as 98,000 people die each year because of preventable
medical errors. That's 268 people per day — over four school buses full of
people, a number that does not include those who die from neglect in nursing
homes or as a result of clerical errors, or the people who are "just"
brain-injured, paralyzed or otherwise seriously injured. If all the children in
one school bus died in a tragic accident, it would be front-page news across
America for weeks. But avoidable deaths in hospitals are buried because they
occur in silence — one at time — in cities across the country.
Fortunately for all of us, the
majority of doctors in Tennessee are professional and dedicated to the health of
their patients. Unfortunately, doctors have been put on the front lines of the
so-called medical malpractice "reform" battle. Doctors have have been
made the unwitting accomplices of insurers who have driven health from the
health care profession — replaced by an obsession with the bottom line. A
review of financial information from Tennessee's physicianowned medical
malpractice insurance company, State Volunteer Mutual Insurance Co., provides us
with facts about its profitability and the so-called insurance
"crisis." From 1987-2001, the company paid its doctor-owners $230
million in dividends, including $82.5 million from 1997-2001. The company's
publications state that it pays dividends only when the "funds are not
needed to pay claims or strengthen the company financially." After paying
out dividends, SVMIC now announces that it is going to raise its rates. During
its last effort to restrict patients' rights in the mid-1980s, SVMIC admitted
that it was "impossible" to predict the impact on liability insurance
rates if the Legislature capped damages. It also refused to promise that it
would lower rates. The Legislature rejected SVMIC's efforts. Afterward, from
1987-1991, SVMIC paid its doctors a whopping $48.5 million in dividends. Despite
payment of large dividends, the company's net worth increased almost 100 percent
to $63.7 million during the same period. SVMIC had after-tax profits of over $29
million, an after-tax rate of return on insurance premiums written of almost 14
percent. Had the company not paid dividends, its after-tax rate of return would
have been over 35 percent of the premiums it charged its doctors. Seventeen
years later, the facts are the same. Tennessee doesn't face the same medical
malpractice "crisis" faced by other states, because of SVMIC's
For the minority of health care
professionals who commit malpractice, Arthur Tucker's case must remind us that
medical malpractice is a significant problem that should not be trivialized or
discounted. Tennessee courts have the authority to throw out frivolous lawsuits
upon motion for summary judgment. Tennessee judges have the powers of remittitur.
That means that if a jury renders a verdict that is outside the realm of
reasonableness, the judge can step in and reduce extravagant awards in
The victims of medical malpractice
have the right to trial by jury. The jury should be permitted to determine the
value of the loss to the victim or the victim's family caused by the wrong.
Victims such as Arthur Tucker should be allowed to hire the lawyer of their
choice — just like the big insurance companies. And, when the Arthur Tuckers
win their cases, they should be paid what the jury and judge say they should.
Before Tennessee patients agree to
compromise their rights, they are entitled to know the answers to these
questions: How much will my doctor's insurance rates decrease if my legal rights
are restricted? How much will office visits and hospital charges be reduced?
Exactly how does restricting the rights of patients with meritorious cases
prevent the filing of frivolous cases? Why are big insurance companies the only
businesses (other than baseball) exempt from anti-trust laws?
John Day is a founding partner of
the law firm of Branham & Day in Nashville and a member of the Tennessee
Trial Lawyers Association.
TORT REFORM: IT'S NOT ABOUT THE
Dr. J. Mack Worthington Commentary
Tort reform is the "hot button
" issue in health care today. The debate ranges from how much is enough for
"pain and suffering" to how much is too much for lawyers to take as a
percentage of jury awards. The real truth of the matter is that neither of these
things matter as much as what the current system is doing and will do to impede
access to care. It's really all about access.
Our medical care system is about to
go into a state of paralysis regarding access to medical care for a number of
reasons. The reasons include the declining number of quality applicants to
medical school; a nursing shortage of crisis proportions; administrative hassles
such as the Health Insurance Portability and Accountability Act regulations that
impede practicing physicians from concentrating on the job at hand — good,
quality patient care; poor physician-payer organization relations; and the lack
of tort reform in an increasingly litigious society.
Without reasoned, intelligent
responses to these and other issues, the American medical care system, the best
in the world, will implode.
President Bush, in an address
before the Pennsylvania Medical Society, said that tort reform is overdue.
"For the sake of affordable and accessible health care in America, we must
have a limit on what they call noneconomic damages — I propose a cap of
$250,000 ... Excessive jury awards will continue to drive up insurance costs,
will put good doctors out of business, will run them out of your community…"
The president also said, "A
lot of times these lawyers will sue everybody in sight in order to try to get
something. In cases where more than one person is responsible for a patient's
injuries, we need to assign blame fairly. There are too many lawsuits filed
against doctors and hospitals without merit."
How do we find ourselves in such a
James C. Mohr, writing in the
Journal of the American Medical Association, says advancing medical innovation,
education, practice standards, licensing laws, liability insurance, lawyer
contingency fees and lay juries have all contributed to the growth of medical
malpractice suits. According to the Physician Insurers Association of America,
between 1935 and 1975, 80 percent of all medical malpractice suits were filed in
the last five years of that period.
The first "crisis" in
insurance availability occurred in 1975, when many commercial liability
insurance carriers left the market. In response, state medical societies,
including the Tennessee Medical Association, helped form doctor owned carriers.
Between 1975 and 1985, the average jury award tripled, along with huge increases
in the number of claims filed and the amounts of paid losses. PIAA reports that
approximately one of every six practicing physicians is sued each year.
High-risk specialties — obstetrics, orthopedics, trauma surgery, neurosurgery
— average one claim for each physician every 2.5 years. For the decade
1991-2001, claims costing $1 million and up increased nearly four-fold and for
2001, the average indemnity (loss) payment was $310,000, up 60 percent in the
last five years.
The reality is that 70 percent of
these lawsuits are found to be without merit. The average cost to defend
frivolous suits is $22, 967. If a trial is required, the average defense cost
(win or lose) is $85,718. The average lawsuit takes 3.5 years to adjudicate.
The transaction costs —
administrative costs, defense costs, plaintiff attorney contingency fees —
consume 58 cents of every dollar in tort costs. Lawrence B. Lindsey, former
White House economic adviser, says, "… our society often views
transaction costs that are one-tenth or less of what the tort process charges as
being too high."
Last summer, the American Medical
Association said a medical liability crisis already existed in West Virginia,
Pennsylvania, New Jersey, Florida, Mississippi, Nevada, Oregon, Washington,
Georgia, New York, Ohio and Te x as. Can Tennessee be far behind?
According to the AMA, 30 other
states— including Tennessee —show "problem signs" associated with
a medical liability crisis. These "problem signs" include changes in
Tennessee's legal system, unpredictable jury awards, inconsistent awards and
rising liability insurance premiums. In 2001 in Tennessee, $94.5 million was
awarded in trials involving personal injury and death. In 2000, by comparison,
$42.9 million was awarded in such cases. Twentynine cases in 2001 drew in excess
of $500,000. In 2000, only four cases drew these amounts.
Doctors are disappearing from
communities on a regular basis. Sen. Bill Frist, a physician, notes,
"Injured patients have the right to sue for medical malpractice, but trial
lawyers do not have the right to force innocent doctors from their livelihoods
and throw our health care system into crisis." A crisis in liability
insurance coverage equals a crisis in access to care. Physicians and hospitals
are forced to choose between paying increasingly higher liability insurance
premiums (which are a barrier to having to pay huge judgment amounts in the
event of a successful lawsuit), or limit the amounts and types of services they
provide to those who require medical care. Tort reform is one necessary response
to the survival of health care that we have known and come to depend upon.
J. Mack Worthington, M.D., is
president of the Medical Society of Chattanooga and Hamilton County
January 28, 2002
The Honorable Dennis Archer
American Bar Association
750 N. Lake Shore Drive
Chicago, Il 60611
Dear Mayor Archer,
It is with sadness that I express my disappointment, as well as that of the Association of Trial Lawyers of America, over the Report of the American Bar Association's Commission on Asbestos Litigation. The Report is an extreme departure from the ABA's historic commitment to the rule of law as enunciated by the courts of the fifty states. Moreover, it represents a crippling blow to the legal rights of hundreds of thousands of injured Americans.
It is important to understand at the outset that we believe the Report's proposed "Standard For Non-Malignant Asbestos-Related Claims" could alter the law adversely with respect to as many as ninety percent of all asbestos-related claims. For these claimants, the Standard has a sole and undisguised purpose: to block their access to the courts, to prevent them from even having their cases heard.
That is a troubling proposition for the American Bar Association to be advancing. Yet, the Report unmistakably states that if an individual suffering from non-malignant asbestos-related disease fails to meet an onerous standard even before filing a complaint, that failure "shall result in the dismissal of the action."
The proposed Standard is not the law in any of the fifty states. Under current law, claimants are justly awarded compensation for non-malignant injury upon meeting a stringent standard of proof at trial that is less onerous than the rigid criteria the ABA would impose before even permitting a claimant his or her day in court.
To suggest that the Standard will exclude "only those claims involving individuals who have no functional impairment" belies the unprecedented jurisdictional burdens the Standard actually imposes. For example, before being permitted to exercise their legal rights to file a complaint, claimants would be required to produce an extensive "detailed narrative Medical Report and Diagnosis" signed by a doctor (a narrative which incidentally would have to include extensive evidence of a
claimants' non-medical history -- work history -- that even the most accomplished doctor would be hard-pressed to know or to certify).
Even if the claimant's pulmonary physician diagnoses an otherwise compensable non-malignant asbestos disease, the heightened X Ray standards, and Forced Vital Capacity and Total Lung Capacity standards (none of which are required under the current law of any state) require claimants to meet these unrealistic standards as a pre-requisite to gaining access to the courts.
Sadly, the Report raises many more troubling concerns that cannot be fully addressed in this letter. I would be remiss, however, if I closed without addressing two additional matters specifically. First, it is incorrect that the Report satisfactorily preserves rights by tolling statutes of limitations until such time as the medical criteria can be met. On the one hand, the Report denies Americans their right to petition the courts unless they can meet onerous, sometimes impossible to meet, criteria. On the other hand, the Report in effect says to these Americans: "Sure, you lose your rights unless you meet new and potentially unsurmountable burdens, but we'll give you forever to meet them."
I am also constrained to object to the Report's callous and disingenuous treatment of issues relating to the residents of Libby, Montana. Acknowledging the tragedy of the "asbestos pleural disease" brought upon these residents by W.R. Grace, the Commission is unconcerned the disease likely would fail to meet the mandatory medical Standard. Instead, the Commission applauds the heightened standards because "by curtailing the flow of money to claimants," it "will help preserve the assets of W.R. Grace" in case the Libby residents get sicker. Either way W.R. Grace wins, and the people of Libby lose. I have noticed that your law firm's web site lists W.R. Grace as a principal client.
Finally, perhaps the most troubling aspect of the ABA Standard is its elimination of existing rights. There has never been an instance in which the Congress -- without establishing a cause of action or providing an alternative remedy -- has ever summarily terminated the legal rights of individuals who were at the time entitled to
compensation under state law. Yet that is precisely what the ABA Standard proposes. For that reason alone, it is constitutionally suspect.
We have heard from various sources that there are a handful of plaintiff lawyers who support this Standard. We believe that there are no lawyers who represent non-malignant asbestos claimants who would take that position, and, indeed, no lawyers representing non-malignant asbestos claimants participated in the Commission's work, which only deals with standards for non-malignant claimants.
The Association of Trial Lawyers of America holds the American Bar Association in the highest regard. The ABA's accomplishments in advancing the rule of law are legion. It seems to us unthinkable that in one fell swoop the ABA might jeopardize a century of service to the law and to the legal rights of all Americans. I hope the Commission and the Association will reconsider recommending this Report to the House of Delegates.
With every good wish,
ABA approval of this proposed standard might open the door to federal legislation adopting the draconian standards outined in the proposal and President Alexander's response. This is how peoples' rights are eroded. Not by prohibiting the cause of action, but by enacting complicated proof requirements that make it all but impossible to prove up your case. Stealth maneuvering, indeed. By the way, who wants to bet that W.R. Grace, a principal client of the incoming ABA president's firm, was a big giver to the Bushies? I'd bet the farm.
Speaking Out on Medical "Reforms"
January 29, 2003
By Andrew Sarchus
Bravo for Linda McDougal.
To hear Bushites fret about the burgeoning healthcare mess, rising prices and unaffordable health costs are the fault of those nasty trial lawyers who just coincidentally support the Democratic Party with hefty financial contributions. Trial lawyers file "frivolous" malpractice lawsuits against "hard-working" doctors and hospitals, who just coincidentally support the Republican Party with heftier financial contributions. Naturally the Republicans want to help their wallets (and hurt the opposition's finances) by siding with the perpetrators rather than the victims of medical malpractice.
Linda McDougal is a middle-class American with no prior history of political activism, who suffered a double masectomy because a hospital pathologist mixed up her chest x-rays with those of a cancer patient. Now she must live with a permanent and totally unnecessary disfigurement.
When given the opportunity to speak to a national TV audience last week, she seized it. She spoke loudly, clearly. And she dealt a telling blow to the Bush regime's disinformation campaign.
The president offered his devious plan for "reform" of malpractice legislation two weeks ago. Stripped of frills, the Bush plan proposes a $250,000 cap on damages while allowing "unlimited" amounts for medical expenses. So what is wrong here? Well, for starters medical expenses are actually limited to less than $50,000 in most cases, including hospital and doctor charges. Secondly, medical providers routinely "write off" a portion of the charges due to insurance and HMO discounts. So a victim of malpractice receives either reimbursement or a write-off of amounts he owes. These write-offs are negligible to most providers, given the number of patients they serve. The use of the term "unlimited" in quantifying medical expenses is a sham.
Then what about damages? Here exists the only means by which victims of malpractice can hobble the perpetrators and get their attention (here in Bush Country, we call it a financial "two by four upside the head"). By winning a jury award of, say, $5 million in damages, a victim may recover potential income lost to disabilities caused by the malpractice. The award may also hurt the provider's finances enough where reform takes place, since the "perp" doesn't want to cough up big cash on preventable medical mistakes. On the other hand, $250,000 is mere pin money to most large hospitals and clinics. Why try reform when you can write a relatively small check and send the maimed victim away to sit on a street corner with a tin cup?
So Linda McDougal, when she was asked what message she wanted to share with the American people after her ordeal, spoke the truth: Bush is as much her enemy as the incompetent pathologist that mixed up her records. Bush's intent, she said, "is to harm me and other victims of medical malpractice. " She said that Bush should look at the source - make the doctors accountable. (On the same morning shows, a spokesperson from the hospital where McDougal was treated said that the pathologist was "truly sorry" for his mistake and has "learned a valuable lesson", but has suffered no penalties, financial or otherwise. Talk about making the doctors accountable!)
A study by a leading consumer group shows that only 5% of providers generate over 75% of malpractice complaints. And study after study has shown that so-called "frivolous" medical lawsuits are nearly always dismissed in the earliest pre-trial stage. Linda McDougal has not yet determined whether she will file a lawsuit. She just wants to be in a position to force reform on an industry that refuses to reform itself and depends on GW Bush, Bill Frist, and other GOP solons to neutralize its victims.
Through its systematic failure to weed out incompetent and negligent providers with rigorous fines, suspensions, and license revocations, the medical industry itself is largely responsible for our malpractice mess. Providers are the cause of malpractice, and malpractice lawsuits are the effect. Obviously, the Bush Administration refuses to acknowledge such facts. Doing so might cause them to lose count of the money.
By speaking out when given the chance, Linda McDougal may just have changed the framework of the political debate. No doubt her bravery has caused the Administration to briefly scuttle plans to push phony malpractice "reforms" until the heat subsides.
Linda McDougal's courage before a national audience helped expose Bush as a smirking phony on malpractice reform. Many other Bush policies, foreign and domestic, need to be exposed. May she serve as our example.
Interesting thought in regard to the above story: if federal law is enacted, then the defense would likely argue, in every malpractice case, that the federal law preempts completely any state common law action. Defendants' lawyers have been using that trick for years, for instance in the area of injuries from pesticides (federal FIFRA Act). Moreover, would a federal act preempt and therefore negate a state medical malpractice statute, such as what we have here in Tennessee? These are important questions, which appear not to have been considered yet.
Liberty is rarely lost in wide swaths. Rather, it’s almost always lost gradually. You’re first prohibited from smoking in government buildings, for example. Then in public places where children are present. Then in public places, generally. Soon enough, you’re prohibited from smoking in your own home.
Our longstanding and unapologetic drug war has granted government the power to arrest us for our own private and personal peccadilloes. Nanny-statists have long advocated employing the power of the state to "protect us from ourselves." Together, the two are snuffing out our civil liberties from either side.
Sadly, I couldn't agree more.
I don't see any move to limit that plethora of commercial -- or whatever -- litigation.
UPDATE: Here's yet another story on the coffee case, from ATLA.
Sunday, February 02, 2003
The problem is, it's all an illusion. The real truth is that trial lawyers are GOOD, and their opponents, namely big insurance and big business, are BAD. Why? they want to increase their profits by taking away fundamental rights of people. I love to see the TV commercials from State Farm (Like a Good Neighbor, State Farm is There) or Allstate (The Good Hands People). Right. State Farm is there to take your premium dollar but screw you if you dare to make a liability claim against it. The only thing Allstate's hands are good for is taking your cash to increase its bottom line. I've said it for years: The insurance compnaies are supposed to be in the business of paying claims; in truth, they are in the business of making money, and if they can lowball you or deny you, all the better for them.
I shudder to think of how much money the carriers spend NOT paying legitimate but low value claims, and paying instead lawyers to litigate them for, sometimes, years. All to put it to the poor plaintiff who had the temerity to want full value for their case. There's another hidden cost of litigation: the unnecessary lawsuits caused by the insurance companies who refuse to negotiate and settle cases in good faith. And believe me, it happens all the time.
So, what I thought I'd try to do here is to present an accurate reality to anyone who might tune in to this page. In a nutshell, "trial lawyers" is NOT a dirty word; far from it. We are the ones who try to help people and make a living at it, and we are vilified. What's wrong with that picture?
Anyway, anyone who has links to pages on the general subject, feel free to email me at email@example.com. RE: opposing viewpoints, I may post the links or opinions, or may not (oh, hell, I probably will; I'm fair-minded, mostly).
"When measured in constant dollars,the average payout per doctor rose somewhat from 1976 to 1983,but was stable to slightly down between 1984 and 2001.In other words, medical malpractice claims payments (in constant dollars) have been flat over the last decade.
premiums have risen and fallen in concert with the state of the economy — insurance premiums (in constant dollars) have increased or decreased in direct relationship to the strength or weakness of the economy, reflecting the gains or losses experienced by the insurance industry’s market investments and their perception of how much they can earn on the investment “float” (which occurs during the time between when premiums are paid into the insurer and losses paid out by the insurer) that doctors’ premiums provide.
This outfit is apparently a coalition of concerned groups, including, interestingly, the Tort Reform Institute in Australia, and the U.S. Public Interest Group, among other groupd nationwide.
These assertions are the core of the argument. Big business and the insurance industry would have you believe that tort reform will be a panacea for those burdened with high malpractice premiums. This study completely debunks the assertion.
He also said that, regarding gun control, he advocated keeping current laws in effect, but that he did not support federal legislation, again seeking to defer to the states on gun control legislation. I've got to say that I have never seen the purpose for gun control legislation. It's not the legitimately-purchased guns that are the problem; it's the below-the-radar screen illegal variety, wielded by bad guys, that cause the problem. Legislation in this area is much like First Amendment legislation -- like school pray-- ah, "moment of silence" type bills: there is a perception that something is being done, without anything actually being accomplished.
I tried to get a link to the C-Span video, but it doesn't work for me, so what's the point? I am amused in that the search result page does refer to an appearance by the Vice-President: "Also, Vice President Dick". Subtle editorializing by C-Span? Those pranksters!