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| more on the American tort legal experience | | Date Created: Jan 08, 2006, 11:07 AM |
The article by Atul Gawande that was in the New Yorker magazine in November still isn't online but Overlawyered.com has found some related articles on it. One is in what looks like a great website for "restoring common sense to American law" called Common Good. The other is an essay by Bill Rogers in the Law Column of the Medical Post. It's called "Malpractice: the American experience" and is reprinted here below.
Rogers is good at picking up on the absurdities, the hypocrisy, and the inefficiency of the plaintiff bar's current system, but Rogers (and Gawande) don't see what the real problem is. That problem is the financial incentive to bring lawsuits.
The solution suggested to base medical malpractice suits on a workman's compensation system and similar to the way vaccine cases are handled, might help medical malpractice litigation and would certainly be better than lay jury trials. Of course it won't get passed because it cuts out lawyers from the cash cow that is the current system and even if passed, it would eventually be eroded by assorted lamprey eels just like what has happened to workman's comp.
The only simple answer that has any chance is to get rid of contingency fees and not allow lawyers to make more than an hourly rate for tort litigation. If someone feels they've been harmed and have a tort case and they can't afford to pay an attorney, then one will be appointed to them just like criminal defendants.
Malpractice: the American experience
By Bill Rogers
If you ever find yourself getting sued for malpractice, your lawyer will probably give you strategic advice. Some of this advice may touch upon things you never expected, such as your clothing. For instance, here's what an American pediatric plastic surgeon's lawyer told him prior to appearing on the witness stand: Don't wear anything flashy or expensive.
The doctor was also advised not to smile. Frowning wasn't a good idea either. And jokes were right out. It was also important not to appear overconfident or dismissive. All this was revealed in a recent New Yorker article where the writer, Dr. Atul Gawande, asks: If you can't wear expensive clothing, and you can't smile or frown, and you're not supposed to appear over-confident, how the heck are you supposed to look?
Apparently image is critical also for the plaintiff, says Dr. Gawande, who is an assistant professor of surgery at Harvard Medical School. Anything that taints the plaintiff in the eyes of the jury can be fatal, and malpractice lawyers will often outright refuse to represent someone who doesn't come across in a favourable light.
Because often it doesn't matter if someone has a compelling claim against a physician—it can quickly be derailed if the individual isn't articulate enough in front of a jury or seems unreasonable or strange. Dr. Gawande talked to one highly successful malpractice lawyer named Vernon Glenn, who is based in Charleston, S.C. Glenn described what he called "the perfect client," a woman in her 30s with three young children who was articulate, attractive (but not too attractive to put off a jury) and who was grieving but not angry or vengeful about the fact that she had lost her husband—a hardworking 39-year-old truck mechanic—to a medical error.
On the eve of the trial, the physician settled the lawsuit for $2.4 million US. But Glenn said that if the widow hadn't spoken English, or if her deceased husband had a long history of mental illness, alcoholism or cigarette smoking, or if the family had been involved in previous lawsuits, or if there had been a criminal record, he might not have taken the case.
Something else that can scuttle a lawsuit before it begins is the absence of measurable damage to the plaintiff, even though medical negligence may have occurred. This is a fundamental principle of tort law: There must be negligence and actual damage in order for a plaintiff to be awarded money. Illustrating this point, Dr. Gawande cited another high-profile malpractice lawyer, Boston-based Barry Lang, who recalled a woman who went to her doctor about a lump in her breast. She was told not to be concerned about it. She then went to another doctor for a biopsy and, sure enough, she had cancer. She telephoned Lang seeking to sue the first doctor. Lang said the first doctor was indeed negligent, but what were the damages? The woman ended up getting a timely diagnosis and treatment.
Interestingly, even where there is negligence and actual damage, only a tiny fraction of cases lead to a lawsuit. This may come as a surprise in an era where malpractice litigation seems rampant, with high-risk American doctors such as obstetricians paying as much as $300,000 a year for insurance and being sued, on average, every six years. But Dr. Gawande points out only 2% of families hurt by a medical error actually sue. The reason, he speculates, may be that most families cannot find a lawyer who feels they would make good plaintiffs, or perhaps they are simply too daunted by the prospect of litigation. Furthermore, of those who do sue, most lose. "Fewer than one in a hundred deserving families receive any money. The rest got nothing: no help, not even an apology."
Dr. Gawande muses about a possible alterative—a compensation system like the one now being used by the vaccine industry. Vaccines benefit tens of millions of children, but every year approximately one in 10,000 kids is harmed by side-effects so there is a 75-cent surcharge on each dose of vaccine. The money goes into a fund to compensate kids injured by the medicine. Would something like this work in the realm of medical malpractice?
One problem, says Dr. Gawande, would be that such a system would no doubt be overwhelmed with claimants. Even if each doctor in the U.S. had just one injured and deserving patient per year, which he feels is a very conservative estimate, the cost of fully compensating these people would exceed the cost of providing universal health coverage in America.
One solution might be to have firm limits on eligibility and compensation. There are ongoing efforts in America to reform the malpractice system, with more than half the states having established limits on how much money a jury can award a plaintiff who has been hurt by a doctor. Plus, the federal government is considering a $250,000 cap on pain and suffering awards.
Whether or not this cap is passed by Congress, doctors are going to continue to get sued in court. And the well-advised ones will dress appropriately for the occasion.
Bill Rogers (LL.B.) is a law journalist who covers medical and pharmaceutical legal matters. Readers with legal news can contact him care at rogers medlaw101@sympatico.ca. |
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