Defending My Career
Thursday, July 05, 2007
No Poker Content. Just sayin'.
"Consumer groups questioned the rate increase and said there hasn't been a recent increase in medical malpractice claims. They'll urge the new task force to focus on the root problems of malpractice by reducing medical errors and correcting industry mismanagement."
- Associated Press
As a plaintiff's attorney, I often cringe when I hear people lambasting the legal process for allowing frivolous medical malpractice lawsuits that cost doctors and insurance companies millions of dollars for risks that are a natural part of the medical practice. On its face, the argument makes sense. People see a medical professional, something happens, they sue, and the poor, altruistic doctor is then dragged through the court process. The argument continues that these cases are usually bullshit, but can provide big paydays to the people making the claims and the attorneys taking the cases. As a result, we have a crowded court system, wrongly accused and victimized doctors, and evil plaintiffs and plaintiff attorneys lurking in the shadows. The poor, altruistic insurance company is then forced to up their rates because the doctors are all targets of the evil lawyers. Therefore, to protect the altruistic doctors and insurance companies, we need to have laws in place limiting medical malpractice cases. In most cases, the awards are capped, often at under $1,000,000 or $500,000 (not so in NY, but true in other states). This will stop those greedy people from filing suits and allow the doctors to offer cheap healthcare and insurance companies to offer cheap insurance to the doctors! Yeah for progress!
Yeah, sounds right. But its wrong. The truth is that medical malpractice cases are the most expensive cases to BRING if you are a plaintiff, and the most DIFFICULT cases to win. Less than 30% of medical malpractice cases are won by the plaintiffs. To successfully prepare a medical malpractice case, a plaintiff's attorney needs to spend tens of thousands of dollars on expert analysis and testimony (usually multiple experts), medical research and other necessary requirements to a lawsuit. Therefore, most plaintiff's attorneys are careful when taking a medical malpractice action, since there will be significant investment before any reward. This immediately weeds out most of the "frivolous lawsuits."
If most frivolous lawsuits are not taken, then why is success rate so low? Because as a people, we look up to doctors. There is a natural bias toward the defendants in these cases. Juries are more inclined to believe that a doctor did everything he could do, or was not at fault for a natural occurence during medical treatment. As a result, the vast majority of lawyers and plaintiffs are NOT making oodles of undeserved cash just by bringing frivolous lawsuits.
So then why do the insurance rates constantly go up? Because insurance companies are the problem, not the plaintiffs. Insurance companies look for any reason to up their rates, including BS arguments regarding frivolous lawsuits. With the creation of medical malpractice caps around the country, you would think that insurance rates have dropped in some areas, right? Nope. The laws go into effect and the rates stay high. In fact, as you can see from the quote above, NY insurance companies have gotten permission to raise their rates by 14%, even though there have been NO increase in the amount of lawsuits.
Insurance companies are the house, if we are using a gambling analogy. They'll do whatever they can to get a higher edge, because they are not interested in the players (doctors), but just in the bottom line. Even when they seem to be doing things for the doctors (claiming that frivolous lawsuits are crushing the medical profession), its all a scam. Misdirection, people! Look that way while we relieve you of your money!
Meanwhile, I have personally had to turn down cases out of state because of bad local laws limiting lawsuits. I work with a lot of infant cases. Basically, the infants are injured when the doctor du jour doesn't read the patient's record, doesn't notice the likelihood of complications, and then doesn't adjust their technique when the complications arise. As a result, my clients, usually babies, FUCKING BABIES(!!!), are left partially paralyzed for the rest of their lives. And its a routine situation. Most doctors know what to do, but they mess up. Its not a low standard. We have to prove that they did not follow accepted medical practices, and as a result, a baby is paralyzed. Am I the villain for taking the case? Are the parents the villains for having the audacity to seek money to help pay for their child's medical expenses and future care? Make no doubt about it, most, if not all, of the awards go straight to the infant, placed in an account to accrue interest until he/she is old enough to accept the funds, and/or placed in an annuity to ensure the money will be there when they go to college, or need a surgery in the future. Are the babies the villains?
I'm constantly coming across posts that knock the legal profession for their dastardly ways, particularly in reference to the poor defenseless doctors. I'm not knocking the doctors. They are not the villains either. Its the insurance companies. The fucking insurance companies. Its just a shame we can make laws limiting the amount of damages a paralyzed kid can recieve, but we allow increases to insurance rates without any actual justification. This is a cause that doctors and lawyers should be working on together. But instead, we are pitted against each other by false claims by insurance companies that frivolous lawsuits are to blame.
Until next time, make mine poker!
posted by Jordan @ 5:20 PM,
15 Comments:
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At 8:10 AM,
Pokerwolf said...
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I won't disagree that insurance companies try to weasel their way into higher profits and that doctors get off in the cases you cover easier than most defendants.
However, the problem with frivilous medical lawsuits usually occurs when class action lawsuits are filed. I've read reports (which I unfortunately can't source at the moment) where perfectly healthy people are sent "You may be part of a class action lawsuit" letters and they sign on as a plaintiff even though they NEVER HAD ANY MEDICAL ISSUES that the class action suit details.
That, right there, is the big problem. Money grubbing jackasses who see the chance of free money. That raises insurance rates for doctors (which puts a lot of them out of business in rural areas) and spends tons of money (taxpayer and private) while clogging up the courts. The perpetrators for this nonsense are lawyers who want to make a huge score. It's fucking ridiculous.
I'm not sure if you've seen The Stella Awards, but that's a great newsletter for frivilous lawsuits. -
At 8:27 AM,
kipper said...
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You speak from side of the plaintiff attorney.
I am curious what about the side of the defendants? Do they charge huge fees in so much it could cost rates to increase? I mean if you bring two lawyers to your case won't they bring 10? Or have I been reading too many John Grisham novels.
--kipper -
At 9:16 AM,
Jordan said...
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Wolf, let me explain how class action suits work, and then you'll have a better understanding on why that's just another cop out. A lawyer will take a class action suit when the individual effects on the plaintiffs are too small to make individual lawsuits financially viable. For instance, AT&T adds a charge onto 10,000 bills without telling anyone, and over the course of months, reaps 10,000,000 in profit from this hidden, illegal fee. If each individual sued, they'd be suing for about 1,000. That's not enough to pay for the cost of bringing suit. So, a lawyer will coordinate and has to notify people who are in the class, based on the records received from AT&T. Change it to the medical profession, and its usually against drug MANUFACTURERS. You can't sue a doctor as a class action, because the facts and the damages have to be the same across the board. Unless there is a doctor messing up the exact same way on hundreds of patients, you don't have a class action suit (and even then, its difficult, because each individual has different medical histories and different interactions with the doc). Plain and simple, its impossible to bring a class action against a doctor! So, that doesn't explain the doctors' insurance woes.
Kipper, that's an interesting point. That would mean that insurance companies need to raise rates because they are paying their defense lawyers too much. Honestly, insurance companies get the best rates from attorneys because of the repeat business, competition for the insurance work, and the nature of the work. For most cases, its still one-on-one, attorney-wise. If the insurance companies are overpaying, or the lawfirms are bilking them of money, that's something that is wrong with defense counsel, and not frivolous lawsuits.
So, you see, there is a lot of misinformation out there. Thanks for your comments. -
At 10:49 AM,
GrayCalx said...
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The doctors are blaming the lawyers. The lawyers (you) are blaming the insurance companies. And the insurance companies no doubt are blaming the doctors and the lawyers. In this cyclical system of greed and consumer abuse I'm not sure I could ever stand behind one of those three careers and say, this person is in the right. All necessary evils in my view.
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At 11:31 AM,
GrayCalx said...
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Rereading my post I thought I needed to explain that I wasn't calling you, High, evil nor your profession, simply the process thats in place now. Sorry if there was any confusion.
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At 12:15 PM,
Jordan said...
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I understood what you meant, Darren. I just don't agree. First, we need to define the battleground. The problem is too high insurance rates. That's our battleground. Now, look at the players. The doctors are merely trying to buy insurance so they can practice their noble profession. I don't put the blame on them. The insurance companies claim that lawsuits are causing them to spend too much money, so they have to raise rates. The lawyers, well, they bring the same amount of lawsuits as ever. There hasn't been an increase in cases or awards, so then they are a non-factor. The villain is the insurance companies, although I'd preface that by saying I don't think they are Evil, per se. Sure, its a messed up system and they might have some reason for their increased rates that I'm not aware of, like changes in overhead. But placing the blame on plaintiff lawsuits and enacting laws limiting the lawsuits just punishes individuals who have been wronged. It doesn't fix the insurance issues.
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At 12:28 PM,
GrayCalx said...
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I think its simply a matter of us having different professions and thus seeing things differently. Being that our farm might be sued for negligence when waivers were signed and the reasoning is more from the plaintiff's hatred for his ex-wife (who signed the waiver) than any negligence on our part, its hard for me to say "Yes plaintiffs and their lawyers are always in the right, its the insurance companies that are at fault." We've done nothing wrong and hopefully the court (if it comes to that) will realize that, but I can't help but hate the system and the pawns in place that are putting us in such a position. Obviously its a slightly different system (healthcare vs liability), but to me, being outside of the system, I see no reason to differentiate.
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At 2:04 PM,
Pseudo_Doctor said...
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nice post high informative perspective from the other side...
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At 2:57 PM,
EN09 said...
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Did the insurance gig for quite some time. Saw some spreadsheets albeit not the true books. Lot's of overhead within the confines there. There are also a ton of overcharges by the medical profession including OTC Tylenol, Advil, etc. Couple with "Defensive Medicine" practices of running every test known to God and Man whether needed or not, to block any litigation down the road.
That being said, maybe everyone would rather have HillaryCare and Socialism taking away your medical choices. One step further would be the Gov't intervening in the law profession as well. Good for the goose good for the gander, right? ;-)
Two words... Ni-Fong.
I would love to see your take on the ACLU and defending NAMBLA and repeat pedophiles.
Harry Reid calls illegal aliens "Undocumented Americans". ACLU sues ranch owners who protect their land from teh illegal crossings and THEY lose their land to the illegals and lawyers fees and court costs?
yeah the inurance companies have some bad apples for CEO's but so do the LawDwgs, including the ACLU.
How about protecting MY Rights from illegals and sex offenders and protecting us from rogue attorneys, politicians, and certrainly you would agree, the frivouous lawsuits like 56 million dollars suits for a dry cleaner losing a pair of pants???
'nuff said. Your post is noted though.
My father was a veterinarian and was sued a number of times which were unsuccessful but he paid lawyers for defending him.
There are g00t and bad in everything. Your view of health insurance is equal to my view of many attorneys and their actions.
Between the two... Both need to make a profit and certainly Class Action suits have made many an attorney an unGodly/obscene amount of money. And the cost of a hospital stay is vastly outweighing inflation. Maybe next time a discussion on MedMal might be worthy. I placed that coverage as well and was privy to a number of MedMal claims including the amount of cash made (and paid to) by attorneys to defend both parties.
A viscious cycle. Hospitals/Physicians - Health Insurors - Patients - Attorneys. Like ticks on a dog, each feed off of each other and biatch about each other.
This was off the cuff and a coffeehouse reply, with no intent of insensitivity or personal injury to any parties involved.
Except for the ACLU. (American Communist Lawyers Union)
Sorry to rant on your blog. I enjoy your schtuff. -
At 3:18 PM,
Jordan said...
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Okay, time to refocus. We are talking about MEDICAL MALPRACTICE INSURANCE and ONLY that type of insurance. That is the issue that is supposedly pushing doctors from the profession. It's very different from Darren's comments (Liability Insurance) and FairNBalanced's comments (Health Insurance). In fact, while Fair seems indignant about this topic, he supports my argument about NOT limiting legal action. Issues about dry cleaners being sued for 56 million dollars are way off topic. That's a whole other discussion.
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At 5:19 PM,
EN09 said...
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Not indignant, simply incredulous about your posting. Although I can understand and empathize with your position, I certainly believe in capping judgements which are notoriously outlandish.
As for MedMal rates, perhaps the physicians would like to self insure? Or pay for your defense costs out of pocket? Or pay damages straight from their private assets?
I've seen many claims, some good, some not so good, from the MedMal side and most are generated by litigious attorneys for absorbitant sums of cash to line their OWN pockets. Not to right a wrong or stand up for the poor and innocent and feel good about yourself. Money drives all.
btw, legislation for capping judgemets will never pass any State Legislative since the majority of politicians are attorneys and they won't bite the hand which feeds them.
Like Colonel Jessup 'sez...and I paraphrase...
"Even though you don't like us and hate what we stand for. You need us there while you sip your cocktails at your Firm's Christmas Office Party while valets park your Beemers and wives compare diamonds. Your home is being paid for with the very blanket of MedMal coverage I provide."
;-) -
At 6:30 PM,
Jordan said...
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This comment has been removed by the author.
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At 9:28 PM,
Jordan said...
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Fair, that's straight bullshit. You honestly don't know what you are talking about. Did you even read my post?
1st, aren't you for for free markets? Aren't you anti-nanny governments? Then explain to me how that fits with litigation caps.
2nd, what "notoriously outlandish" awards are you talking about? Is this the drycleaner thing again? Oh, how about the McDonalds coffee argument! Irrelevant. I'm talking about medical malpractice cases. Read my post and you'll see that med mal cases are not financially viable unless they are strong cases. Otherwise, they cost too much to bring the case and the risk is too high. We can discuss outlandish awards in another post.
3rd, why do you think legislators won't pass statutes limiting med mal litigation? Its already happened in Florida, Wisconsin, and at least 17 other states. Interestingly, in states without caps, awards increased 48.2% in 12 years (1991-2002), but states WITH caps still went up 35.9%. The caps aren't the solution because litigation isnt the problem. The problem are insurance companies that raise rates regardless of caps. These stats are according to WeissRatings, which is now owned by TheStreet.com. -
At 12:53 PM,
EN09 said...
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HoP... I'm discussing MedMal AND Free Enterprise. The fact is your topic on MedMal is fine - from your point of view. And it is the exact same point of view held by the Trial Lawyers Association, which is fine as well.
Bottomline: The high cost of medicine is related directly to litigation, the cost of healthcare, the cost of pharmaceuticals, the cost of MedMal, the cost of Major Med coverage and it is to be expected that each entity would want to protect their share and point to the others as the Devil.
I'm all for Free Enterprise which is why I played the Devil's Advocate earlier. Many times one man's argument, which seems to make sense is ridiculous when applied to the other side.
You complain, or state anyway, about the rising rates for MedMal, but then DEFEND caps on judgements. How does THAT logic work?
"Hey! They're raising rates! Boooooo!!!!"
"Ummm... Let's not cap what we can pull our percentages from though, okay?"
You do not see MedMal carriers advertising on the back of phone books as Bodily and Personal Injury lawyer's do. In fact, not one of the hospitals or surgeons ever wanted to carrier MedMal coverage just for chit and giggles or to "cover their bases" as far as their professional career goes.
They carried it for FEAR of being litigated and it's the COST of litigation and the large summary judgements awarded by a jury of our peers, aka; layman with little or no knowledge of the medical field or legalities involved. They are, as you very, very well know, governed by their EMOTIONS. Pure and simple. Any decent Trial Lawyer knows this and uses/abuses it to their advantage when thier client is on the stand. Play to their emotions and we'll get a bigger amount for you.
So any time I/we/our carrier was confronted by a trial lawyer asking for hundreds of thousands over the actual damages, they would want to discuss punitive as well as compensatory damages against the physician AND the hospital AND the anethesist AND the janitor AND anyone else they could come up with. Charge them all and let the Judge/Jury figure it out.
Physicians complain about the high cost of Medmal??? I say go without. You and I both realize all insurance, MedMal as well as home/auto insurance, is nothing but a 'Transfer of Risk'.
We are for Free Enterprise, as you say. So why bust MedMal? If they continue to pay out the funds for awards, are they not allowed to include that in the cost of 'doing business' and raise rates? Or raise rates for 'high risk' hospitals or surgeons? Or even REFUSE to take on the particular risk?
Free Enterprise? Yes. Both sides please.
I summarize by adding there are no doubt more dishonest attorney's in America than MedMal carriers or representives of such. There are more Nifong's in the woodwork than one would want to admit. There are more so-called Attorney's misappropriating their clients funds, trust accounts and abusing their Executor status.
Defending your career is fine HoP. I get that.
There are decent, honest, upstanding people in your field. I know many. But I also know many whom are not. (And serving time by the way, with one losing his Bar status here locally)
You utter the phrase "free enterprise" which slides of your trained tongue smoothly as if you believe it, than wind up your diatribe with "The problem are insurance companies that raise rates...". Nice. Sounds as if your against free enterprise for carriers?
Perhaps these same medical practitioneers would rather pay your fees for defense and claims out of their pocket and private assets? Or perhaps a hospital could close it's doors in the face of a large judgement and the increasing field of Trial Lawyers specializing and seeking out these cases?
Just where do you think these MedMal carriers derive the funds to pay Med claims from? Certainly it wouldn't be rates, would it?
Insurance is a transfer of risk, not a Right. If the cost of coverage is more than they can afford, the physician/hospital raise their rates as well to compensate. MedMal carriers and the medical field would rather not have a relationship this turbulent. And I've been privy to the Loss Ratios of certain hospitals and individuals and what carriers have paid for damages INCLUDING what the representing legal team receive. It is the legal field which makes the insurance carrier and the medical field bed partners.
Split hairs, but if it weren't for lawsuits (and the DEEP POCKET Syndrome which follows), the medical field would never contact us, and the MedMal coverage would have never been developed to the point we find it today.
Keep litigating. The MedMal carriers will either choose to continue with the product or increase rates due to the increased cost of being able to keep paying claims. Medical folks will have to pay more, which in turn will, as we all know, be passed on to the regular guy.
MedMal carriers would just as soon have less litigation, which would result in less costs for them as well as for the physicians. And believe me, the physicians would just as soon have less litigation as well. The litigators? They don't want caps on judgements, and still advertise on the backs of phone books and daytime TV will still carry those ads which state, "Have you been involved in an accident? Chances are someone owes you money..."
I wonder just who initiates, and who really benefits financially from litigation of the medical field... -
At 10:33 AM,
Jordan said...
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FairNBalancd, are you even reading my responses? I understand playing the devil's advocate, but you keep mischaracterizing my statements and the argument itself. Everyone is entitled to an opinion, but your opinion is completely baseless. It's a knee jerk reaction without any thought as to facts or the reality of the world.
I just showed you statistics that demonstrate that the raise in insurance rates are not tied to litigation costs, yet you keep repeating that point like a bleeting sheep. I didn't say we should cap insurance rates either. Let them go up as high as you want, Fair. You are twisting the argument to suggest otherwise. I'm merely saying that the propoganda out there regarding med mal lawsuits is false, and that med mal lawsuits are rarely frivolous and never an easy payday involving huge awards (you ignore these two arguments, which are based on FACT). I'm also pointing out the trends to cap the awards.
Then you continue with arguments about advertisements regarding auto accidents. I can't argue with you if you want to bring up irrelevant things. It's like you defending dolphins and me saying that sharks kill humans, so you are wrong because things that swim in the ocean are evil. I have to assume that you are coming from a position with no personal knowledge with these arguments.
You ask who initiates the litigation? The doctors initiate the litigation when they cause harm to a patient and then don't admit it and fix the problem. The client has to come to us. We are not allowed to go to them and solicit a case. So, first the doctor initiates, then the injured client continues, and the lawyers are brought in. Who financially benefits? The patient and the attorneys for BOTH sides. If you really think that lawyers should all work for free than you really don't understand free enterprise at all. These aren't egregious rates either. The amount we are allowed to charge is controlled by law.
So, in closing, if you are going to argue, at least stay on point and use facts, instead of assumptions or suggestive questions.
