Afraid of getting sued? A plaintiff attorney offers counsel (but no sympathy)
Lawyer Lewis Laska has chronicled medical malpractice settlements and verdicts for more than 25 years. Here, he crosses the aisle to share insights.
IN THIS ARTICLE
Are these figures still relatively accurate?
LASKA: Yes, so far as I can tell.
OBG MANAGEMENT: Why do you think so many cases (40%) are settled by monetary payment? Is there blatant negligence in those cases? Or is the insurance company simply reluctant to bear the burden of cost of seeing the case all the way to trial?
LASKA: Sorry, but this is a false dichotomy. Insurance companies never settle unless there is provable liability. The notion that an insurance company would settle a big injury case with marginal liability is simply a cultural myth of medicine.
OBG MANAGEMENT: In your book, you say many injured patients sue just to find out what really went wrong because the doctor has not been communicative about all the events that transpired. If physicians were more straightforward about adverse outcomes and the reasons for them, do you think fewer patients would sue?
LASKA: Yes, I think there would be fewer suits, lower settlements, and greater trust. Doctors should stop demanding “tort reform” and look more closely at themselves.
If my book seems too toxic for ObGyns, another option is Medical Errors and Medical Narcissism by John D. Banja. He argues that physicians are self-obsessed, wanting to be seen as “perfect.” And when they do wrong, they follow a path driven by narcissism. Shock and concern are followed by rationalization, avoidance, and minimization.
By the way, most people would like doctors to communicate with them the way physicians communicate with patients (and one another) on television. Jurors are sometimes stunned to learn that the doctor being sued did not communicate with nurses about the problem as it arose, and then disappeared without talking to the injured patient.
OBG MANAGEMENT: You say that about one in eight patients who sustain injury in the hospital actually sues. Why do you think that figure is so low?
LASKA: The injuries sustained are not so severe that a lawyer can be convinced to take the case, or the patient simply does not know that she was injured by negligence.
Because it takes so much money to press a health-care liability case, the injury has to be severe to justify it. Here’s an example: The obstetrician cuts the baby’s face during a cesarean delivery. The parents are outraged, but if the baby heals nicely, there really isn’t much of a case that will bring enough money from a jury to justify a lawsuit.
OBG MANAGEMENT: In your book, you claim that juries are moved not by sympathy, but by anger. Could you elaborate?
LASKA: When a physician is sued, and, in response, points the finger at someone else, who points the finger right back, juries conclude that the team simply was not working together. And the refusal of anyone on that team to accept responsibility makes the jury angry. Doctors may call it “system breakdown,” but juries consider it malpractice—or, the term I now use, “health-care liability.”
Another reason juries get angry is the rude and condescending behavior that physicians sometimes exhibit in videotaped testimony. Sometimes doctors make fools of themselves in these videotapes by contradicting themselves, contradicting the medical records, contradicting the testimony of nurses, and so on. This kind of behavior will torpedo a case and lead to a higher verdict than it would have in the days before videotaping, when the deposition was merely read to the jury.
How do lawyers try these cases?
OBG MANAGEMENT: Has the way in which lawyers try cases changed?
LASKA: Most medical liability cases now end up in the hands of legal “specialists,” who have experience in a particular area. In addition, lawyers now share information better than in the past. ObGyns and other doctors don’t understand that health-care victims’ lawyers are working together as never before and learning to overcome the many defenses—some very tenuous—that are raised in a doctor’s defense.
A recent Tennessee case is an example. In Olinger v. University Medical Center, the defendant ObGyn (and his experts) testified that shoulder dystocia is a “sudden emergency” because it occurs in only 3% of deliveries.3 They also asserted that 90% of the time, shoulder dystocia is relieved by initial maneuvers, such as McRoberts’ maneuver.
In this case, because the doctor had delivered 4,000 babies and had encountered shoulder dystocia only 100 times, and because the legal case represented the first time initial maneuvers had failed to resolve the dystocia, the defense argued that the occurrence was a true “sudden emergency,” allowing the jury to be so instructed on that issue.
