Future Forum: Guilt, Innocence, and the Death Penalty 
Oops!
The doctor makes his cut. The lawyer and the insurance man take their cut. You just get cut.
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Perdue’s first step was to obtain the medical records and turn them over to a friendly anesthesiologist for review. The anesthesiologist’s conclusion: the records were fishy. Perdue says, “The anesthesia records and the doctor’s operative report did not reveal anything that actually occurred.” The lawyer then hired a private investigator to nail down that the surgical assistant was not a doctor and to verify that the nurse anesthetist had been asleep. Perdue also retained an economist to estimate how much damages he should seek, based on past and future medical cost and the loss to the family of Carole’s services as a wife, mother, and housekeeper. He also started looking for an expert medical witness on the subject of resuscitation. After five or six unsuccessful tries, he found a doctor who would testify that if resuscitation had taken place within two or three minutes after cardiac arrest, Carole’s brain damage would not have been so severe. The expert estimated that eight to ten minutes could have elapsed—crucial evidence to show that the nurse had been asleep. She and the defense attorney steadfastly denied that she had been dozing on the job, but during the jury selection process, the defense suffered an embarrassment. While Perdue was discussing the implications of the nurse falling asleep during an operation, he happened to notice that the nurse was asleep in the courtroom. The defense attorney was also hampered by not being able to produce a key witness. Soon thereafter, the defendants settled for $550,000 and upon Carole’s subsequent death paid her young child another $200,000.
It should be clear by now that a good portion of the blame for the malpractice crisis must be shouldered by the medical community itself. What may be less clear is why the public should care who wins their intramural scrimmage between special-interest groups. The answer is that, no matter what doctors would have you believe, you and not they are paying for the skyrocketing cost of malpractice insurance. An extra $2 to $10 for each day in the hospital, an extra $100 to $200 for each operation, and extra $1 to $2 for every office visit is directly attributable to rising malpractice insurance rates. That totals about $1 billion that Americans are shelling out annually. To that must be added another $3 to $5 billion for a growing practice called “defensive medicine,” a euphemism for doing everything possible to avoid a possible lawsuit. That means endless tests, x-rays, and second opinions—not always necessary, but safe. And lucrative.
Doctors are paying more, to be sure, but most of the burden falls on surgeons. In California, where more than twenty jury awards have gone into seven figures, some surgeons who want coverage of up to $1 million must pay $77,674 a year in premiums. In Harris County, where three-fourths of all Texas claims originate, an orthopedist pays $14,400 for the standard $100,000-per-claim/$300,000-a-year policy and $26, 900 for $1 million/$3 million. Before you shed too many tears, consider that (1) it’s fully deductible and (2) a skilled orthopedic surgeon in Houston can anticipate making anywhere from $200,000 to $500,000 a year, depending on how hard he wants to work. Rates for general practitioners are nowhere near as high unless they perform surgery. (One of the little-noted aspects of the malpractice crisis is that it has forced some doctors out of the operating room. That could actually benefit the public, since surgical death rates vary considerably, depending on the surgeon’s skill, the hospital facilities, and the risk involved in the operation.)
We’ve been hard enough on the doctors; now its time to turn our attention to their arch enemies, the lawyers, and to the ultimate beneficiaries of the rate increases, the insurance companies. Doctors attribute the lion’s share of the blame for their plight to lawyers. Attorneys have even ruder things to say about doctors, whom they feel are crybabies or wose, and who, they correctly fear, are bent on ending a remunerative system that pays handsome dividends for lawyers. Lawyers also have some rather nasty things to say about insurance companies and their role in all this. Not surprisingly, insurance industry spokesmen have unflattering observations on the integrity of both doctors and lawyers. After listening to representatives of these dignified professions vilify and defame each other, one might conclude that doctors are butchers, lawyers are liars, and insurancemen a pack of thieves.
It’s more complicated than that, of course, but let’s follow that argument for a while. Take the lawyers. What enrages doctors is the proliferations of frivolous lawsuits. Dr. Donald Butler of Houston, whose $1 million countersuit may make Texas legal history, complains, “A large number of suits have minimal merit. The plaintiff’s attorneys just don’t investigate. Their intent is to collect the maximum amount with a minimum of work. The reason attorneys file these phony lawsuits is that insurance companies find it cheaper to settle them than to fight them. The frivolous suit is legal blackmail.”
Butler says one medical malpractice lawyers boasts of filing 100 to 200 malpractice claims a year. Another plaintiff’s attorney “has sued probably half the doctors in the community,” claims a Pasadena doctor. “Usually he sues you for a preposterous amount and then offers to settle for a fraction of it.”
A similar problem is the practice of suing everyone even remotely connected with the case. One Houston lawyer listed 85 defendants; that doesn’t quite equal the 116 named in an Illinois case. Since any doctor who gets sued usually has to pay a 25 per cent surcharge on his malpractice insurance premiums—even if he is later found not negligent—these frivolous claims can wreak a lot of havoc. In a typical abuse of this type, Dr. Betty Stephenson, a Houston anesthesiologist, was sued because her name was still on the stationary of her former group practice, even though she had left six months before the alleged malpractice occurred. Yet the plaintiff refused to drop her name from the suit. One doctor was sued twice by patients he had never seen simply because he was chief of the hospital’s surgical staff. And an ophthalmologist (an eye doctor) was sued ostensibly for removing a kidney, but actually for having the same last name as someone who had.
It doesn’t help their already strained relations with doctors that lawyers exhibit little concern about the problems of frivolous suits and multiple defendants. Houston attorney George Pletcher, a member of the special study committee created by the 1975 Legislature to study the malpractice issue, told me with a straight face that “frivolous suits don’t amount to a hill of beans and don’t affect premiums.” Mac Gann jokingly refers to the practice of suing everyone in sight as “scaring all the cats out of the alley.” The New York bar has proposed a system of penalties for unfounded suits, but the less-than-vigilant State Bar of Texas has so far looked the other way.
Doctors may be taking the remedy into their own hands. After a large countersuit against a Chicago attorney was successful, Cook County enjoyed a 24 per cent drop in malpractice filings. Dr. Butler has led the way in Texas with a $1 million countersuit filed against Houston attorney John Holloway.
Butler and another doctor treated a patient named Mary Morgan, who later complained that a nurse had injured her by badly inserting an intravenous needle, causing her wrist to swell up. Without her knowledge or approval, Holloway, when suing the hospital, included Butler and the other doctors as well. During the trial, Holloway asked Butler to examine the plaintiff’s wrist for a knot or swelling; Butler did so and found neither. The judge admonished Holloway for not preparing his case properly, and the jury exonerated all defendants. After the verdict, Butler says, Holloway admitted that the doctors were not guilty, extended his hand, and said “No hard feelings?” Butler answered with his countersuit.
Such countersuits may become more and more prevalent. Already the Houston Surgical Society is considering a fund for countersuits. “It excites the doctor because it has a measure of revenge,” says one lawyer. But so far plaintiffs’ lawyers have been reluctant to represent aggrieved doctors—perhaps because countersuits are a new and difficult area of law, perhaps because lawyers have their own version of the “conspiracy of silence.”
Just as lawyers have resisted doctors’ complaints about frivolous lawsuits, they have been hostile to far-reaching solutions to the malpractice crisis affecting their own profession. The study committee looked at several possible reforms, including screening panels to sort out frivolous claims, submitting disputes to binding arbitration, and scaling down contingent fees. One reason lawyers resist screening panels is that doctors want them to be composed entirely of medical representatives. Doctors also want the findings of the screening panel to be admissible evidence in court, but lawyers instinctively fight anything that limits their ability to proceed in court. That’s why binding arbitration isn’t popular with trial lawyers either. But nothing is as odious to them as an attack on their beloved contingent structure.
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