Clinical Review

Afraid of getting sued? A plaintiff attorney offers counsel (but no sympathy)

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Lawyer Lewis Laska has chronicled medical malpractice settlements and verdicts for more than 25 years. Here, he crosses the aisle to share insights.


 

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No surprise that the lawyer who wrote Sue the Doctor and Win! has a divergent view of the medical liability “crisis,” compared with the way ObGyns usually see it.

Lewis Laska, JD, PhD, shares ObGyns’ concerns about the effect of malpractice on women and their children. But he doesn’t agree that the number of lawsuits is increasing, or that the dollar value of jury verdicts is rising beyond what might be expected with “normal” inflation, or that most malpractice cases are generated by “greedy” lawyers.

Instead, he asserts that most liability cases arise from poor care, that ObGyns and other physicians often do themselves more harm than good when responding to a poor outcome, and that all doctors could learn a lot by considering the viewpoint of their nemesis, the trial attorney.

OBG Management decided to explore Dr. Laska’s intriguing proposition to view medical malpractice through an alternative lens and take advantage of his considerable experience as an attorney and medical malpractice expert. In a Q&A session, we asked about some of his assertions and inquired specifically about the ways he believes physicians draw avoidable medicolegal trouble.

Dr. Laska is a legal consultant and editor of Medical Malpractice Verdicts, Settlements & Experts, a monthly compendium of malpractice cases from around the country (www.verdictslaska.com) and the sole source of malpractice case summaries in the “Medical Verdicts

OBG MANAGEMENT: Let’s focus first on the fundamental disagreements between malpractice attorneys and physicians. In your opinion, what are the most common misconceptions among ObGyns about malpractice litigation? That is, what do doctors just not “get” about the reasons they get sued?

LEWIS LASKA: They think that lawyers are always looking for ways to sue doctors; in reality, it’s just the opposite. For every lawsuit filed, as many as 100 are turned down. There are a lot of angry people out there, and trial lawyers do a lot of filtering.

Doctors also have the attitude that malpractice lawsuits are caused by lawyers rather than by anything that the doctor did or failed to do. In other words, physicians seem to think that health-care safety would improve if only there were no lawyers—and they overlook the obvious: that somebody (a nurse or doctor) did something wrong.

The most common misconception among ObGyns is that there is nothing they can do to avoid being sued. In reality, however, there is much that can be done. If ObGyns participated in drills to manage shoulder dystocia and common emergencies, and honed their skills and those of labor and delivery nurses so that their responses to these so-called complications were improved, they wouldn’t get sued so often.

ObGyns also fail to manage gestational diabetes aggressively, a clearly avoidable “complication.” Finally, if ObGyns were more responsive to questions from their patients, and acted more kindly, patients wouldn’t be so eager to sue them.

Is the number of lawsuits rising?

OBG MANAGEMENT: How many malpractice cases are filed each year in the United States?

LASKA: No one except the insurance companies knows how many malpractice cases are filed—and they aren’t telling. There is no central source in this country in which lawsuit filings are tallied, although some years ago the Physician Insurers Association of America cited an estimate of 30,000.

Nor is there clear agreement about what constitutes a malpractice “case.” Does it include a fall from a hospital bed? A fall from an ObGyn’s examining table?

It also is important, in addressing this question, to point out that a lawsuit is not the same thing as a claim. The latter may involve a patient simply complaining about poor treatment, bad office staff, and so on. Although a lawsuit is certainly a claim, a claim is not a lawsuit—and there are many, many more claims than lawsuits.

OBG MANAGEMENT: Is the number of malpractice lawsuits increasing?

LASKA: The most recent data that address this question are from the year 2006 and come from the National Practitioner Data Bank (NPDB). There were 15,843 medical malpractice payment reports received that year. That figure is 8.3% less than the number received in 2005, which showed a 2.2% decrease from 2004.1

Anecdotal data provide additional evidence that the number of malpractice lawsuits is dropping. For example, Massachusetts Lawyers Weekly reported that 485 lawsuits were filed in 2008, compared with 708 in 2000. And Pennsylvania Lawyers Weekly noted that 1,602 lawsuits were filed in 2008, compared with 1,641 in 2007 and 2,732 in 2002.

As for the number of lawsuits filed each year, I think the 30,000 figure is about right. According to the NPDB, the average delay between an incident that leads to payment and the payment itself is 4.88 years—and that delay actually increased by 80% from 2005 to 2006.1 If we assume that 30,000 cases are filed each year, and that it takes about 5 years for a case to close, that means about 15,843 payments each year, since it is a cumulative number for about 5 years’ worth of cases.

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