Max Kennerly has this interesting post that sprung from a post on Kevin, M.D. about a doctor who was a victim of poor medical care. The doctor went to a lawyer, not because she wanted money (she said) but because she wanted an apology. The lawyer couldn’t take her case because it was not economically viable. The doctor never got the apology she said she wanted.
I have represented patients in medical malpractice cases for 29 years. I have been contacted many times over the years by health care professionals to represent them in medical malpractice cases, and I am surprised to learn how little they know about the complexities of actually bringing the case. My assumption is that they have been taught that medical malpractice cases are routinely filed and won, and that cases are resolved based on sympathy and emotion, not laws and medicine. Anyone with any knowledge of the system knows that is simply not true and, for every plaintiff that wins a brain damaged baby case on the basis of "sympathy" there are five cases in which plaintiffs with valid cases lose because "Dr. Smith may have dropped the ball on this one but he is such a nice guy and volunteers as the team doctor for the high school football team."
Likewise, I am constantly amazed at how angry these health care professionals get when I do not automatically accept their view of the case or decline a case because it is not economically viable. Let me recount a recent example. Note: to avoid any risk of someone recognizing this event or the people involved, the gender of those involved may or may not be correct and the facts of the underlying event may or may not have been altered. Those portions of the post that go over the discussion with the prospective client are accurate.
A Tennessee doctor asked me to represent him in a wrongful death suit. His father, a man in his 90s, was a victim of a series of claimed medical errors involving one doctor (a PCP in the community who was an acquittance prospective plaintiff ) and various other professionals at a
local hospital where his father ended up as a result of the alleged negligence of the PCP. The doctor explained in detail how egregious each act of malpractice was, supporting his claims with articles from various professional publications. He was sure that there was a cover-up involved, that "someone needs to lose their license over this," that the none of the potential defendants would ever want the public to know about these events, and thus would pay well into seven figures quickly to make it go away before suit was filed.
In other words, he made the same arguments that many of our less sophisticated potential clients try to make, except (a) his education permitted him to more clearly articulate his position; and (b) he was convinced to a moral certainty that he was right, unwilling to listen to a lawyer with 29 years of experience in the field who attempted to explain that things were a little more complicated than that.
I spent close to two hours with doctor, a rare event for an initial interview with a potential client. I did so because although I routinely sue doctors I view my meetings with them as an opportunity to learn more about what they do and how they think and as an opportunity to help bridge the gap between our professions. Well, there was not going to be any gap bridged in this meeting. This doctor came in angry, and the situation did not improve. They had killed his father, and they had to pay!
After listening to the facts and the conspiracy theory, I asked him to explain to me what each professional did wrong. That is when the articles came out. Glances at the articles revealed that some supported the prospective client’s theory (but of course would not be admissible as substantive evidence under Tennessee law), but others clearly reflected that the doctor involved had other treatment options available, not that the standard of care was violated.
I then spent my customary 15 minutes or so explaining what has to be proved in a malpractice case and began discussing the need that the case be economically viable. I explained the notice requirement and the certificate of good faith requirement and that it would take the review of at least three and probably four different types of experts to establish negligence and causation in the case. I told him that if medical negligence cases are settled they are not usually settled until lots of work has been done on the case. I told him that the facts as he represented them did not indicate a public relations risk for the potential defendants, that unfortunately the series of events leading to his father’s death were all too common, and that a quick settlement to avoid publicity simply would not occur given these facts.
I then discussed with him the elements of damages in a wrongful death case. He was outraged to learn that Medicare would have to be repaid ("my father supported that system his whole life and now that he got benefits from it they want their money back?") and told him that I thought the case had a value of X to Y, with a settlement value (if an offer ever came) of closer to X.
He was shocked at the numbers – way too low, he said, for a human life of a healthy man in his 90s. I told him that his professional organization and his professional liability carrier had worked for years to limit the damages in this type of case to $250,000. He said that was not correct, that they only wanted to limit damages in frivolous cases, not in a case like this.
He disagreed with my assessment of the liability and steps necessary to prove it – it was obvious malpractice, he claimed. I told him – again – that his view of the standard of care of these professionals was helpful but not admissible because he did not practice in the same or similar specialty as the potential defendants. His response? "This is fundamental medicine – everyone knows this!" I told him that was immaterial, that the statute advanced by the medical community required expert testimony from a person in the same or similar field and that this case would require two or three experts, plus a causation expert.
I also told him that the defendants would have two to three experts for every one we were able to hire. He said no credible professional would ever testify that there was no violation of the standard of care. I told him he may well be correct, but that experts would still be disclosed by the defense who would, at least, fall back on the "medical judgment rule." He asked what that was and I explained the way that it is described in the Pattern Jury Instructions. He said that the rule was ridiculous, that one could use it to justify virtually every act of malpractice. I told him that his insurance company relied upon it in almost every case.
I then told him I could agree to investigate the case because, even if it was determined to have merit, that the work involved and the money to be investigated meant that the case was not economically viable for my firm. I explained that another firm might be able to help him, but not ours.
He was angry that I would not agree to investigate the case – that there was something wrong with a legal system that did not permit a person to get representation in this type of case. I explained that his brothers and sisters in the medical community had made these cases so expensive to prepare that it forced lawyers to take only cases that had significant damages unless liability was crystal-clear. He went on a rant about how miserable lawyers were and how the legal system was a joke.
I then said he had convinced me, that I would investigate his case, and that my hourly rate for doing the investigation would be $400 per hour, my normal rate for hourly work. I explained that I would need a $100,000 retainer, and while that almost certainly would not be enough money to meet the expenses and time that would be spent, that it would at least be a good start and that I would let him know when he needed to replenish the fund. I said that if he was correct that the providers would fold quickly and very little money would be spent. I said would refund the balance.
He asked what it would cost if the case went to trial. I told him that because it was a multiple- defendant, multiple-expert, fact-intensive case I estimated the expenses through trial at between $75,000 and $100,000 and that fees would exceed $250,000. I said I would delegate as much work as possible to younger lawyer and paralegals with lower rates but that a trial would result in at least 1000 hours of time given the number of parties, the duplicitous discovery conducted against us, the meaningless depositions of family members that would certainly occur, etc. I told him that if we lost he was at risk for paying certain expert witness fees and other expenses incurred by the defendants. But, I said, the legal system should provide him access to justice and give him the opportunity to prove that his father died of malpractice and I would do it for him if the investigation revealed that a case could be presented in good faith.
His response: "Why would I invest that amount of money in a case that is only worth between X and Y and that I might not win?"
I explained to him that he was asking me to invest that amount of time and money in his father’s case on a contingent fee. I further explained that I could get paid nothing for the work I did if the jury determined that the case was without merit, regardless of how many experts we hired and who testified that the case had merit.
I then asked him why I should be willing to make that kind of investment in his case for his father if he was unwilling to make the same investment?
This doctor was not a bad person. He was uniformed. Not, that is not it. He was mis-informed. For years and years and years he has been told that all it takes to win a malpractice lawsuit is to claim an injury, file a lawsuit, and a bunch of nincompoops on the jury will give you a check for millions of dollars. He was told that lawyers are greedy bastards, that they will file any lawsuit regardless of merit, and that they can extort money out of people who had done nothing wrong. He believed that because this was so, his case – his meritorious case, the case to right the wrong done to his beloved father – was thus worth millions, because if all those money-grabbing, deadbeat plaintiffs on public assistance can get money for nothing he should get more money for a real loss. He had been mis-informed for so many decades that it was part of his being.
I understand his frustration. He doesn’t have the time to look at the real data about malpractice cases. He only knows what he is told. And what he has been told is wrong.