What’s New in Medical Malpractice?
While conservatives, and the GOP in general, continue to clamor for tort “reform,” the reality is that medical malpractice payments are not only not “out of control”–they are at their lowest level since 1992, according to an analysis by Public Citizen.
So it was surprising, to say the least, that a long-time liberal and former Clinton White House lawyer would speak out in favor of tort “reform.” Yet, as Ashby Jones, of the WSJ Law Blog wrote, that is exactly what Lanny Davis has done. But interestingly, Jones’ telephone interview with Davis reveals something disturbing. For a lawyer of his sterling status (current partner at McDermott, Will & Emery), he is out of touch with the day-to-day business of personal injury law and its subset, medical malpractice.
He starts out fine, speaking of the competing interests of providing for victims of medical malpractice, on the one hand, and taking care of the doctors, who, in his opinion have been forced to practice “defensive medicine,” and are close to being “push[ed] over a precipice.”
After briefly touching on the jury’s role in determining non-economic damages, he advised that “[t]he problem in the system comes when you move beyond compensatory damages and into the realm of punitive damages…to deter bad behavior…How do we know that an out-of-whack penalty is going to deter the next doctor from being negligent?”
Well, speaking of being “out-of-whack,” Mr. Davis might be interested to know that punitive damages are rarely, if ever, awarded in medical malpractice cases. It happens “only where the actions of the alleged tortfeasor constitute gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or activated by evil or reprehensible motives.” Matter of Gravitt v. Newman, 114 A.D. 2d 1000 (2d Dept. 1985). I think we can all agree, and I include non-lawyers here, that this type of conduct is not seen in the usual medical malpractice case. And therefore, when Mr. Davis refers to such damages as being “the problem,” he immediately and permanently loses credibility. “The problem,” instead, is that people like Mr. Davis feel free to speak on issues about which they are not knowledgeable.
He goes on to make certain that we know, and won’t forget, the extent to which he is a dilletante in this arena. He “really believe[s] that some plaintiffs’ lawyers misuse the courts with frivolous lawsuits…There’s no cost to filing a frivolous lawsuit. And there’s no reason not to do it. The bogus lawsuits that [he's] seen–the false claims cases, the securities fraud cases…[have] proven to be enormously lucrative…you can get a settlement and retire forever.”
Really? And here I thought we were talking about medical malpractice lawsuits. But, no need to stay on subject. And as everyone knows, any lawyer can file a “bogus” case, and hit the jackpot, because the insurance company and its lawyers will not scrutinize the claim, will not conduct discovery, and will definitely not try the case. No, according to Mr. Davis, the insurance company will simply throw money at you. And naturally, all of that money the trial lawyers get from such bogus claims is pure profit, because when things are as Mr. Davis says they are, there is no need to invest tens of thousands of dollars of the trial lawyer’s money into obtaining roomfuls of medical records, conducting days of depositions, and retaining sometimes multiple expert medical witnesses.
I, for one, am certainly glad that Mr. Davis took time to weigh in on tort “reform,” because it reaffirms what most of us in the trenches know quite well. Tort “reformers” are generally out of touch with the type of law involved and the realities of day-to-day practice, and have no appreciation for what it’s like to be the victim of medical negligence.
Trial Lawyers Have Already Saved Your Life
You know, doctors don’t like to admit it, but even they turn to us trial lawyers now and then, as they have this week in California. The reason? The Governator, a/k/a Arnold Schwarzenegger, exempted state hospitals from the requirement that an anesthesiologist be present when a nurse anesthetist administers anesthesia to a patient, without consulting the state’s medical board and board of nursing. Pursuant to Medicare rules, he was requirerd to do so.
California’s medical societies have spun this as a patient safety issue, i.e., the supervision of an actual doctor prevents mistakes and injuries, and can better correct them if and when they occur. But it is hard to ignore the fact that if doctors must be present in every case in which a trained, certified nurse anesthetist administers anesthesia, those doctors are going to make more money.
So who did the doctors call when they felt that their rights were being stomped on? That’s right. Trial lawyers. With their help, they have filed suit against Gov. Schwarzenegger. Which is a little odd, since most of the time, when doctors or their medical societies use “trial lawyer” in a sentence, it is coupled with words like “greedy,” “evil,” “opportunisitic,” and the like.
Of course, the reality is that trial lawyers may have saved your life, particularly if you were lusting after that cute little Ford Pinto some years back. And even now, if you think Toyota is taking the action it is with regard to accelerator pedals on its own, you are probably in another galaxy. It was trial lawyers, and the legitimate threat of lawsuits that would cost the company big money that was the ultimate motivator.
Perhaps if people had a natural tendency to take action to right wrongs they become aware of, we would not need us trial lawyers. But history teaches us otherwise. In yesterday’s NY Times, we learned some good news: that radiologists were finally taking the dangers of radiation therapy seriously by forming a safety task force and a central data base of errors that harmed patients. But the disappointing news was this. Such a step would never have been taken if the NY Times had not written two recent articles on the dangers of such therapy, and the lack of any safety systems that might help regulate such treatment. You don’t think the radiologists envisioned a law suit or two, do you?
What Tort “Reformers” in NY Don’t Want You to Know
There’s been a lot of public hand wringing by the GOP’s best spin doctors about those “runaway medical malpractice verdicts,” and their deleterious effects on the cost of healthcare, all done in the name of limiting victims’ rights to fair compensation, and helping doctors and hospitals avoid accountability for their errors.
In GOP World, the answer to the problem of “jackpot justice” –surely you’ve seen all those severely injured plaintiffs who have won law suits riding around in specially-outfitted Rolls Royces–is to impose caps on medical malpractice awards given by juries. This would inject some much needed common sense into our broken jury trial system, and let doctors get back to the business of helping people, so the rhetoric goes.
And if you are not a lawyer, you might have given a second thought to such histrionics. But if you are a lawyer, and particularly a New York State lawyer, you know that the tort “reformers” have neglected to fill the rest of the public in on a little secret. Are you ready for it? Good. There is already an effective tool in place in our court system that limits outrageous jury awards, and it works both ways: lowering the award when it is exessive; and increasing it when it is too paltry. That tool is actually twofold. It consists of the common sense of our appellate judiciary, as well as precedents set with regard to the exact issue of compensation.
After any verdict in New York State, any party can move for a reduction, or an increase in the amount of the verdict, based on what is reasonable compensation under all the circumstances. In Ross v. Mandeville , 45 A.D.3d 755 (2d Dept. 2007), an OB/GYN allowed a medical student to make the incision enabling a C-section to be performed. The student ended up lacerating the forehead of the as-yet-undelivered baby, causing minimal, but permanent scarring. When the trial jury awarded $200,000 for the infant’s past pain and suffering, and $350,000 for future pain and suffering, the defense moved to set aside the verdict as excessive. The Appellate Division agreed with the defendant, and reduced past pain and suffering to $45,000, and future pain and suffering to $80,000. It found that the initial damages deviated from “reasonable compensation.” And they did so by looking to comparative values–that is, what other courts had awarded under similar circumstances.
So much for “runaway verdicts.” And so much for the urgent call for caps on medical malpractice damages, at least here in New York.