Once upon a time there was an insurance crisis…a lawsuit crisis…a medical malpractice crisis…a series of crisis manufactured by industries who have a need for consumers to have someone other than them to blame. The insurance industry, the healthcare industry, Associated Industries — the business of business organizations; they all have very distinct business reasons for keeping consumers mad at trial lawyers. These businesses know that government does not have the time or resources to hold them accountable for negligence; sometimes intentional; and so, they keep throwing gasoline on the fire of the propaganda created disdain for trial lawyers.
When I have the opportunity to give speeches or hear them given in connection with tort reform and tort law in general, the conversation usually finds itself leading to a discussion of medical negligence, medical malpractice. From there, depending on the group, we talk about doctors “fleeing” states; excessive malpractice premiums; and, inevitably, the “McDonald’s coffee case”.
What does it take to file a medical negligence lawsuit in “good faith”? To truly understand that, you must understand the elements the plaintiff is required to prove in any lawsuit:
- Negligence – someone acted improperly—a deviation from the acceptable standard of care.
- Causation—the someone’s improper action caused damages (in whole or in part)
- Damages – the injury flowing from the act of negligence
Let’s take a medical malpractice case as an example (for you lawyers out there I am ignoring the very difficult standard of proof that is specific to the emergency room). The patient is admitted to the hospital and complains of pain in the lower right quadrant of his abdomen. The initial diagnosis is gas. That is not an unreasonable assumption, but the “duty” on the part of physicians and nurses is to use their specialized training to consider all the differential (alternative) diagnosis, which might include the same symptoms. Obviously, what one of the differential diagnoses may be is appendicitis, right? The hospital is busy and abdominal pain is often chalked up to a non-emergent condition; so, our patient waits and his pain persists. Suddenly, the pain decreases significantly and the patient feels some relief. The patient begins to feel less fear of what may be happening to him. He should not. What has really happened is as the health care providers have adopted what they will spin as a “wait and see” approach, the patient’s appendix has burst and he is quickly on his way to severe peritonitis (infection in the abdominal cavity). In our case, a nurse is alert to this sudden and unexplained “improvement” and asks a doctor to authorize a blood analysis. That blood analysis shows a significant and dangerous rise in the patient’s white blood count. The patient is taken to surgery on an emergent basis; his appendix is removed; his abdominal cavity is cleaned and treated with antibiotics. After (8) days and IV antibiotics, our patient is finally released from the hospital, “all healed”.
Was their negligence? Some would say yes and some would say no. Is it a deviation from the acceptable standard of care to shelve a patient in the emergency room to see if they get worse or manifest additional, more specific symptoms? Some would say it is very bad care to push a patient aside and ignore them for several hours, only to have them develop life threatening injuries. Some experts would agree with that and other experts would simply chalk it up to the cost of doing business in medicine. For sake of argument, let us say that we can establish that ignoring classic appendicitis symptoms; proceeding on a working diagnosis of gastritis; and not paying attention to the patient for several hours is, in fact, negligence.
So, did the negligence cause the damages? Well, the negligence arguably caused some of the damage, but did it cause it all? If the patient had been attended to earlier and had surgery earlier, would that have made a difference in the ultimate outcome? It would have, more likely than not, made some amount of difference. The patient may have been hospitalized for one or two days rather than a week. The patient, however, would have still lost his appendix and would have been hospitalized for some period of time and infection is a known complication of any abdominal surgery; so, would he have had an infection anyway from the appendix rupturing during removal? Maybe.
What are the damages? Additional days in the hospital and possibly some amount of additional treatment the patient might not have otherwise needed. Some days of lost wages. Some additional pain and suffering. Essentially those are the damages. If you are honest with yourself, you can probably put a value on being afraid you are going to die and, then, staying an extra week in the hospital. Is your extra pain and suffering worth $20 an hour, $50 an hour, $60 an hour, $100 an hour?
In our example, keep in mind that I am assuming negligence, because poor care does not necessarily translate to negligence. I speak to people very often who received bad care, some who received outrageously bad care, who do not have a medical malpractice case. My firm accepts only between 2% and 5% of the total number of cases we review, so the cases justifying a lawsuit are relatively small in number.
If I were to undertake this patient’s case, I would be required to comply with numerous statutory requirements in order to even determine whether a case exists which can be prosecuted. First, I would need to have the case reviewed by an emergency room physician relating to the standard of care for the ER physician. I would probably need to have a nurse review the care of the nurses to determine whether they met the standard of care. I would need to have the case reviewed by a general surgeon to discuss whether different care would have resulted in a better outcome for the patient. First, I would have to obtain my entire client’s (formerly the patient) medical records. Florida statute permits health care providers to charge $1.00 per page for medical records. For a several days stay, the cost of records alone may be $1000 to $1500.
Simply to determine whether my client may have a potential case of malpractice requires the investment of many hours of time in obtaining, organizing and reviewing medical records; an actual out-of-pocket investment of possibly as much as $10,000 in this example. If the reviewing experts believe that a health care provider deviated from the acceptable standard of care, the expert must then sign a sworn affidavit specifically naming the health care provider and setting forth in detail the negligence. Further, the expert must set forth that the negligence directly caused damages. Florida statute then requires “letters of intent to sue” be prepared and served on the providers against whom negligence is alleged, including the sworn expert affidavits.
A 90 day period of investigation is then required by the statute in which the potential defendants must conduct a good faith investigation in connection with the allegations being made by the plaintiff. The investigation can include the taking of a statement from the plaintiff by the defendants. When the defendants have concluded their investigation, they can do a couple different things:
1. They can admit they made a mistake and offer to arbitrate the plaintiff’s damages;
2. They can deny they made a mistake;
If the defendant denies the allegation made by the plaintiff, the plaintiff must file a lawsuit if they wish to further pursue a legal remedy. The cost of filing a lawsuit in Palm Beach County is currently set at $401.
Once the plaintiff has filed their lawsuit, the defendant is permitted to conduct “discovery”. Discovery allows the defendant to determine what evidence the plaintiff plans to present to a jury at the time of trial. This includes requiring the plaintiff to complete lengthy written responses including:
1. Interrogatory questions to the plaintiff. These questions can be nearly anything even remotely relevant to the plaintiff’s claims. We have cases in which the defendants, for example, have asked for every school attended by the plaintiff EVER and all employer information in the plaintiff’s ENTIRE life.
2. Interrogatory questions directed to the plaintiff’s experts regarding the experts opinions.
3. Requests to the plaintiff to produce documents (medical records, tax returns, etc); including virtually any document even remotely connected to the plaintiff’s claims. For example, we have cases in which the defendants have been permitted to ask for tax returns for the previous 20 years.
The defendants are then permitted to obtain the plaintiff’s sworn testimony, called a deposition, which can sometimes involve days of testimony in which the defendants can inquire about nearly any subject and the plaintiff is obliged to provide answers. The defendants can sometimes compel the plaintiff to undergo an independent medical examination by an “expert” chosen by the defendants. Virtually any reasonable medical test or examination can be required of the plaintiff.
I, on behalf of my client, will generally take the depositions of the defendants’ experts, as well as the defendants themselves. Typically, the defense lawyers obtain experts from across the country to testify.
To prepare the average most basic medical malpractice case for trial requires thousands of hours of attorney, paralegal and support staff time. If a client were charged by the hour for our work on a basic case, the fees would probably exceed $300,000 to $500,000. The investment in the most basic a case as used here in our example will ultimately require an investment of $30,000 to $60,000 in costs. A complex medical malpractice case can require an investment of $75,000 to several hundreds of thousands of dollars.
No plaintiff could afford to proceed with a case if they were compelled to pay their attorneys fees and the costs invested in the case. For this reason, if I agree to represent a client, I agree to do it on the basis of a percentage of the client’s ultimate recovery (contingent fee), plus costs. If I fail to recover for a client, they owe me no attorney’s fee and usually they owe me no costs I have expended in their case.
Normally, a malpractice case will require (2) to (4) years to get through trial and sometimes an additional year or more on appeal. As a result, when I agree to proceed with a medical malpractice case, I am risking hundreds of thousands of dollars in attorney and staff time and tens of thousands, if not hundreds of thousands of dollars in expenses. Add to this investment the cost to me for the loss of use of money spent on costs, a malpractice case puts enormous sums of my firm’s money at risk.
Do I say all of this for you to feel sorry for me or be impressed with me or my firm? Of course not. It is simply an illustration to show that bringing a medical malpractice lawsuit has many statutory requirements designed to discourage or prevent the bringing of frivolous lawsuits. If Florida law did not require such an arduous process though, good business sense would prohibit me from bringing a frivolous lawsuit and risking sums this large and time better spent on other cases.
Frivolous lawsuits, contrary to the message encouraged by the insurance industry, are a rarity. You may disagree with a lawsuit, but that does not make the case frivolous. The justice system is all about disagreement and having a forum in which to disagree. Just ask the corporations filing lawsuits against each other and who actually who take up the largest amount of judicial resources.
Is the answer tort reform? Every statistic you can find demonstrates that the majority of medical malpractice lawsuits involve the minority of doctors. That is a problem with policing of professionals and not a tort problem. Juries love and respect their doctors and nurses with good reason. Every statistic you find will demonstrate that physicians and hospitals win malpractice lawsuits more often than patients; even in cases of obvious malpractice. Every valid statistic you will find demonstrates that the exposure of medical malpractice insurance companies has gone down steadily every year for the last several years; those same statistics will demonstrate that the cost of medical malpractice insurance has NOT gone down commensurately.
What is the practical result of tort reform in the context of medical malpractice? In Florida, I can tell you that since the last round of tort reform was passed and the health care industry obtained virtually every single thing it asked for, I have observed the following:
- Physicians employed lawyers to teach them how to best protect their assets.
- An increasing number of physicians stopped carrying malpractice insurance altogether.
- Physicians and hospitals who were already marginally regulated have realized that patients really have very little recourse left to them, except in the case of catastrophic injuries.
I know it sounds a bit crass, but when the last round of tort reform passed, it became “open season” on patients. The last real fear that kept medical professionals practicing with great care was the worry of a lawsuit. That protection has been horribly minimized by tort reform.
Would I agree to take the case we have used as an example? No. The costs of developing the case and trying it far outweigh the probable value of the case and that assumes I was successful for my client. Does that mean it is fair that a negligent physician or hospital gets to escape punishment for their negligence and the suffering they cause? No. What it means is that the bringing of any lawsuit on the part of a responsible attorney requires careful examination of the merits of the case and, thus, its likely outcome.
So, frivolous lawsuits are a fable told by old insurance and medical professionals who long for the day when they could blame absolutely everything on trial lawyers. Now, they have only themselves to blame. Though it is the minority of physicians who generate the majority of negligence, it is ultimately patients who pay with their suffering and limited access to seek justice.