Thursday, February 06, 2003

Michelle Dulak asks: "Lawyers can be hit with malpractice suits, but do they routinely carry liability insurance against such suits? If they do, is it as heavy an expense as it is for, say, the average obstetrician? How often are lawyers sued in comparison to doctors, and what's the average side of an award in each case? " Lawyers do get sued, and they routinely do carry malpractice coverage. I do not have data on the relative costs compared to doctors, but I would argue that lawyers are much more target defendants than doctors, i.e., if a lawyer screws up and costs a client a recovery, there's not going to be much sympathy for him/her in the courtroom.

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.


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Anonymous said...

"... and they routinely do carry malpractice coverage..."

it is kind a worrying..