Sunday, February 27, 2005

Bush's Next Target: Malpractice Lawyers

“The work, time, risk and potential rewards in complex malpractice suits are illustrated by a $20 million settlement Mr. Smith won last June. The origins of the case go back to 1997, when Huong Nguyen, then a 19-year-old sophomore at the University of Illinois at Chicago, was experiencing shortness of breath doing ordinary things like climbing stairs. She was diagnosed as having a faulty mitral valve, a pair of triangular flaps that regulate blood flow between two of the heart's chambers. The valve had to be repaired or replaced.

The surgery lasted more than eight hours, though the procedure usually takes about half that long, Mr. Smith said. The next morning, Ms. Nguyen could squeeze her right hand, but she was otherwise paralyzed and could not speak. She had suffered severe brain damage.

A lawyer referred the family to Mr. Smith, who began investigating. After an initial screening by Mr. Smith's firm, the family filed suit against the surgeon, Dr. Bradley S. Allen. Over the next several years, in preparation for trial, the law firm spent $375,000, much of it for the work of specialists like a cardiothoracic surgeon, neurologists, economists and a forensic videographer.

Mr. Smith contended that Dr. Allen did not properly remove air from the patient's heart during the procedure and that the resulting air embolus caused brain damage. Dr. Allen's lawyer, Kevin T. Martin, said Ms. Nguyen's resulting disability was a risk in this kind of surgery and "very unfortunate, but not a medical error."

The surgery had been videotaped, but when a court ordered Dr. Allen to produce the tape, there was a lengthy gap that included brief segments of television commercials. Had the case gone to trial, Mr. Smith would have contended that the defendant tampered with evidence, an assertion denied by Mr. Martin, who said the gap in the tape had resulted from a mechanical malfunction.

Ms. Nguyen is unable to move her arms or legs and cannot sit up or speak on her own. She communicates by tapping her right forefinger on a special keyboard. She suffers from depression and seizures but is cognitively intact. “She is totally aware of her desperate straits,” Mr. Smith said. “This is as bad as it gets and she knows it.”

Mr. Smith's economists estimated that lifetime care for her would cost up to $20 million. The settlement talks, Mr. Smith said, began a few months before the trial was scheduled to start, with the defense offers starting at $5 million and the Nguyen family deciding to settle at $20 million. ‘It was entirely the family's decision,’ Mr. Smith said. ‘I think we could have gotten more in trial.’ ”

THE medical liability system, health care analysts agree, is deeply flawed. But they also generally agree that the solution offered by the administration and the Republican Congress - putting a ceiling on damages - addresses only one aspect of the problem.

Medical liability policy, said Dr. William M. Sage, a physician and a law professor at Columbia University, should seek three goals: restraining overall costs, compensating the victims of medical mistakes and providing incentives for doctors and hospitals to reduce medical errors.

"There is a strong consensus among people who have really studied the issue that caps on damages would tend to keep costs down and make liability insurance more affordable for doctors," Dr. Sage said. "And there is a universal consensus that caps would do absolutely nothing to reduce medical errors or to compensate injured patients. If anything, caps on damages would make those problems worse."

Medical malpractice laws vary state by state. But California offers a glimpse of a future preferred by the administration and many Republicans in Congress. In 1975, California passed the Medical Injury Compensation Reform Act, which included a cap of $250,000 for damages like pain and suffering in malpractice cases. It did not limit economic damages for things like the cost of continuing care for a person disabled or wages lost because of medical errors. The law also curbed attorneys' fees on a sliding scale that prohibited them from collecting more than 15 percent on award amounts over $600,000, with higher percentages for the amounts below that sum. (In states without limits on fees, contingency payments to malpractice lawyers are typically about one-third of awards.)

Research varies on the likely impact of curbs on awards and fees, but a RAND Corporation study last year concluded that the California law had reduced the net recoveries for plaintiffs by 15 percent and had cut attorneys' fees by far more, an estimated 60 percent. Defendant liabilities, it calculated, were trimmed 30 percent because of the law.

California malpractice lawyers say the law also discourages them from taking wrongful-death cases if the victims are children or retirees. Those groups have no economic value by the cold logic of the courtroom because they are not earning salaries, so the maximum award would be $250,000. Complex cases, which often require many expert witnesses and years of research, can cost that much to bring to trial.

Linda Fermoyle Rice, a medical malpractice lawyer in Woodland Hills, Calif., said she recently told the family of a 14-year-old boy who died unexpectedly in a hospital - apparently from medical negligence, Ms. Rice said - that she could not afford to pursue the case. "The law has made it impossible for many victims to get access to the court," she said.

Even plaintiffs who get to court often come away empty-handed. Nationally, defendants prevail in nearly 80 percent of the medical malpractice cases that go to trial. Many malpractice suits, legal analysts say, are filed by personal-injury lawyers, accustomed to handling simpler cases like those involving auto accidents, but not as experienced in medical negligence work. In a 2002 survey by the trial lawyers association, only 11 percent of its 60,000 members said medical malpractice was their primary area of practice; 40 percent replied that medical negligence cases were some part of their practice....
con·cept: Bush's Next Target: Malpractice Lawyers