The Pace of Justice

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In recent months, the media has attempted to put a new spin on the old, tired arguments regarding doctors and medical malpractice cases. The new approach involves a discussion of the time burden that medical malpractice lawsuits allegedly place on doctors – an issue that made it to print in a recent article published in the New York Times. In that article, a physician attempts to make a claim that the average doctor in the U.S. spends more time defending lawsuits over the course of their careers than they do in medical school. Ridiculous. Doctors do not spend a great deal of their time actually defending anything. If sued, the doctor will confer with his lawyer, help answer written questions called Interrogatories, and give a deposition. That’s about it – less than three days involvement. If the case is actually tried, the doctor will attend, but most all malpractice cases settle and do not go to court – ask yourself why?

This new allegation arises, in my opinion, because the medical profession has lost the old and tired argument that there are too many medical malpractice cases filed in the U.S. – too many frivolous malpractice cases being filed – and an allegation that jury awards are astronomical in these cases. Those arguments have been proven patently false. The author herself, in the article, states that few medical malpractice claims result in payments and that insurance premiums are holding steady or dropping. Finally, she admits that less than 5% of all medical errors result in malpractice suits. Because the medical profession has lost the old argument, the author argues that the medical profession should start focusing on the time lost defending medical malpractice cases instead of the economic costs involved. Again, in my opinion, an attempt at spin.

Ultimately, the author advocates finding a way to solve medical malpractice claims on a speedier basis. Fair enough, but if we are going to discuss the system of medical malpractice suits we should focus on the reasons that these cases take years to proceed through the system. As an individual who has been representing victims of medical malpractice for 39 years, I believe we must ask the question of who benefits from dragging these cases out – the injured and/or disabled plaintiffs who are waiting years to have their cases resolved? – the plaintiffs’ lawyers who only get paid a legal fee at the very end of the case and only if they win? – or the insurance companies and the attorneys who represent them? Who really benefits?

Insurance companies make money by investing the premiums that doctors pay to them. The longer they hold their premium dollars, the more interest they derive from their invested premium dollars. This can certainly incentivize insurance companies to delay final pay-out, even on clear cut cases. Consider that, in some cases, it is more financially beneficial for an insurance company to settle a claim years from now rather than today since the delay results in a larger return on their investment.

And the lawyers who represent these insurance companies, are not like plaintiffs’ attorneys. Defense lawyers bill the insurance companies hourly and get paid on a regular basis – win or lose. So who is really benefiting from protracted pretrial motions, endless depositions and opposition to expedited proceedings? The defense, and the insurance companies – that’s who.

The plaintiff’s bar is definitely in favor of resolving medical malpractice cases on an expedited basis. It benefits their clients, and it benefits them. However to do so, we must ensure that patients injured at the hands of negligent medicine retain their access to the courts and their access to the jury system. It can be accomplished if we all work together. But certainly working together does not involve allegations that physicians in the U.S. spend more time defending medical malpractice cases than they do learning how to be doctors. We must have more reasoned analyses if are to truly accomplish our goals – full, fair and adequate compensation to injured plaintiffs in a reasonable time frame.