Tort “Reform” Works–To Deprive Medical Malpractice Victims Of Their Right To Recourse
It’s always heartening and reassuring to see that large corporations that manufacture poisons for human consumption–think Phillip Morris here– have gotten their money’s worth from their efforts to promote the great lie that is tort “reform.” You know. It’s the same story, basically, repeated over and over again. The plaintiff with the faked injury who conspires with the ethics-challenged plaintiff’s lawyer, who limps into the courthouse with a frivolous case, i.e., one entirely lacking in merit, and somehow manages to fool the defense lawyers, their expert physicians who have examined the plaintiff, the judge and 12 jurors into awarding him millions of “jackpot justice” cash. I mean, think about it! Those poor defense lawyers at those large firms paid handsomely by the medical liablity insurance companies were fooled for about 3-4 years, the time it usually takes a medical malpractice case to get to trial or settle. The defense lawyers gained no insight from their opportunities to depose the plaintiff for sometimes days at a time. Their understanding of the case and its merits benefited not one bit from the crates of medical records obtained from every doctor that ever looked at the plaintiff prior to the lawsuit, even after these records were analyzed by physicians on staff with the insurance company. The defense lawyers had no chance to observe the demeanor and credibility of the plaintiff during those drawn-out depositions, so that they would of course have no idea whether a judge or jury would appreciate their narrative of events at a trial.
Not surprisingly, medical malpractice suits are down, according to technorati, while injuries resulting from malpractice are up. That is the kind of perversity that results from well-funded efforts aimed at keeping the negligently injured out of the courthouse. How is that accomplished? One favorite tactic is to shorten the time one has to bring the lawsuit. Another is to place arbitrary caps on damage awards, insuring that victims who have already suffered debilitating injuries will think twice before embarking on a painful, drawn-out journey that will not result in very much compensation at the end, even if the journey is a successful one. But the favorite tactic is the one described above–tarnish plaintiffs, their lawyers, their motives for seeking redress in court, everything about them.
Maybe it’s time for a different way of thinking about victims of medical malpractice. And maybe an organization devoted to consumer safety has a suggestion worth hearing.
“There is a crisis in medical malpractice, not lawsuits,” said Taylor Lincoln, research director for Public Citizen’s Congress Watch division and the author of the new study. “Trying to stop people from being compensated for catastrophic injuries is not the answer. We should instead concentrate on making hospitals safer and disciplining doctors who repeatedly commit malpractice.”
I think Mr. Lincoln has a point. And I know, based on a recently concluded study right here at NY Presbyterian Medical Center, that an OB/GYN patient-safety initiative, properly adhered to, will save lives, and millions of dollars in liability costs for hospitals. Yet a bill that proposes using such a system in all New York State hospitals is being virtually ignored. I think that says something about the state of our civil justice system in New York. Unfortunately, because this is a family blawg, I can’t print that statement here.
What’s New in NY Medical Malpractice? Arons Authorizations/Medical Indemnity Fund
Compensation to families of infants injured at birth due to medical malpractice is about to undergo a big change, but whether or not it’s for the better is anybody’s guess. The class of plaintiffs that will be affected is composed of those infants who suffered neurological impairment to the brain or spine during the birth process, and the area of compensation involved is future medical expenses.
At present, if the injured infant’s family prevails at a medical malpractice trial, it is awarded, as part of the damages calculus, a sum of money to cover future medical expenses. That sum is usually the result of calculations performed by an expert economist retained by the plaintiff’s family. As of October 1, 2011, that will change. Money for future medical expenses will no longer be given to the affected families at the time of the verdict or settlement. Instead, such families will have to register for a medical indemnity fund managed by New York State, from which they will supposedly receive enough money to properly care for their injured children. Luckily for us, the workings of this plan have been nicely summarized by attorney Glenn Verchick in the most recent Brooklyn Barrister.
As Mr. Verchick points out, the purpose of the plan is to lower malpractice premiums for hospitals. And the same hospitals will no longer be saddled with paying for the future medical care that the negligence of their physicians made necessary, since the fund will assume that responsibility. So, to the extent that such payments contributed to improvements in patient safety, that opportunity has been lost. And it strikes me as strange that with the wealth of opportunities to legislate improvements in OB/GYN-related patient safety, the bill proposed by Assemblyman Rory Lancman, that would force all NYS hospitals to institute programs mirroring the hugely successful patient-safety program at NY Weill Cornell Medical Center, is not being acted on.
Another development being closely watched by medical malpractice lawyers on both sides of the aisle is legislation that may overturn the Arons v. Jutkowitz case, in which the NY Court of Appeals granted defense lawyers the right to conduct informal, ex parte interviews of plaintiffs’ treating physicians, as long as the lawyers obtained the proper HIPAA-compliant authorization ahead of time, and waited until the close of discovery to contact the physicians. Many plaintiff’s lawyers were and remain disturbed by the Arons case, for reasons best left to more articulate bloggers like Eric Turkewitz. Suffice it to say that the decision showed a certain naivete on the part of the Court with regard to human behavior, and that it ignored the harm that could accrue toward a plaintiff’s case by allowing such an unregulated exercise to take place. But now there is a bill, also proposed by Assemblyman Rory Lancman, that would effectively reverse the Arons decision. It’s nice to see someone looking out for the interests of those injured as a result of medical malpractice now and then. Let’s hope this bill gains some traction. However, in the political atmosphere that produced a one-sided, State-sponsored Medicaid Redesign Team, utterly lacking in representation by patient-safety interests, I’m not feeling very optimistic.
A Day In The Trenches, Or, How Med Mal Defense Lawyers Behave At EBTs
Yesterday, I witnessed a senior partner at a major medical malpractice defense firm act like a toddler. In fact, he became, before my eyes, the neighborhood kid who becomes angry when he does poorly in the backyard football game, and takes his football home.
Let me set the scene. As is usually the case, I was outnumbered. There were 3 defense lawyers, one of whom was defending his client, and me. Things began inauspiciously enough. I asked the Dr. the topic of the one article he had published in his career. The Dr., who had been trained in gastroenterology, responded “parasites.” And a defense lawyer for one of the codefendants immediately rose to the occasion, displaying his wit by chuckling “like plaintiff’s lawyers.” Mind you, this fellow was also quite senior in the defense bar, until his firm dissolved, and he was taken in by one of the still-financially-healthy defense firms. Of course, it may not have occurred to him that without plaintiff’s lawyers bringing cases on behalf of plaintiffs, he would not have his job.
But on to the deposition. It should have been a short one, and would have been, had the defense lawyer defending the subject of the deposition played by the rules. Unfortunately, that was not to be. We came to a question that the defense lawyer found objectionable. There’s nothing wrong with raising the objection, and he did so. However, the lawyer then directed the witness not to answer my question, which was improper. According to 22 NYCRR 221.2,
“A deponent shall answer all questions at a deposition, except: (a) to preserve a privilege or right of confidentiality; (b) to enforce a limitation set forth in an order of a court; or (c) when the question in plainly improper and would, if answered, cause significant prejudice to any person…”
The defense lawyer’s objection was, in essence, one based in a perceived lack of relevancy. But even assuming the lack of relevancy of my question, the defense lawyer could not articulate how anyone would be prejudiced. And in practice, I would be surprised if a lawyer ever could, since what is said at a deposition will often never come in as evidence at trial if the proper trial objection is made.
And frankly, the “new” rules (which became effective in 2008) were designed to put a halt to the practice of many less ethical lawyers, who would delay, obstruct and sometimes stop completely depositions that were in progress over minor issues that would ultimately be addressed at trial.
When it became clear that the defense lawyer wouldn’t budge or engage in reasonable conversation, I called the assigned judge, and we consulted her for a ruling. Here’s where things get really good. The judge told the defense lawyer that his client had to answer my question, though in the same breath, suggested that it was not an entirely relevant question. Instead of allowing that to put an end to the matter, the defense lawyer told the judge that he would not abide by her decision, and would instead “put in on papers.” He indignantly claimed that all medical malpractice litigation would be negatively affected if he allowed my question to be answered, and continued to block it.
So after about half an hour of arguing over the telephone before the judge, and awaiting her decision, the defense lawyer rejected it when it was not favorable to him. In the process, he kept his client in the deposition for an extra half hour, wasted my time and that of the counsels for the codefendants, and did so knowing that he was wrong on the law. But I’ll bet he gets some great billing out of it.