Trial Lawyer Draws Gun, Then Tells a Story

Perhaps you’re here today to witness a killing. Unfortunately, Dr. Rangel has declined my offer of a duel. I’m not sure why, but I do know it’s not because he’s giving medical aid to a lawyer. That’s because as a method of tort “reform,” Dr. Rangel has suggested on his weblog that doctors refuse to treat trial lawyers.

What to do now? I figure Dr. Rangel would expect a trial lawyer to shoot him down in cold blood when he’s not defending himself. So I’m not going to do it. Instead, I’m going to subject Dr. Rangel to a story about doctors and lawyers. Its hero is a fictional doctor named Dr. Abel, who happens to be much more tolerant and level-headed than Dr. Rangel.

Who is Dr. Abel? He’s a doctor who went to the finest medical schools and trained with the country’s best practitioners. Yes, Dr. Abel is very good, but he also understands that doctors are human and some will make mistakes. Even though Dr. Abel has never been sued, he knows it could happen someday. That’s why he has medical malpractice insurance. The insurance will provide him with defense lawyers and, if he loses, will provide the injured party with some compensation.

Dr. Abel also understands that when a patient thinks he’s been harmed by a doctor’s mistake, the patient will need a lawyer to represent him. Dr. Abel doesn’t particularly like lawyers. Even so, one of his neighbors is a lawyer. His name is Mr. Wilson. Oddly enough, Mr. Wilson is a plaintiffs’ lawyer who does a fair amount of medical malpractice.

On weekends, Dr. Abel and Mr. Wilson often meet on Dr. Abel's patio to talk about sports and the weather. That’s how Dr. Abel learned a little bit about Mr. Wilson’s law practice. Dr. Abel was surprised to learn that Mr. Wilson turns down almost every potential malpractice case that comes into his office. In fact, a great deal of Mr. Wilson’s time is spent explaining to people why he’s not willing to represent them. Often, the claimed “mistake” was actually a known risk of a particular procedure. Often, there wasn’t any mistake at all. Sometimes, even if there was a mistake, the patient wasn’t harmed very badly.

Dr. Abel was also surprised to learn that Mr. Wilson has absolutely no interest in filing a frivolous lawsuit. Why not? Mr. Wilson explained that first, it would be a breach of the rules. Second, it would be unethical. Third, it might expose his client to liability. Fourth, a judge would probably throw the case out and remember Mr. Wilson as a lawyer who files frivolous lawsuits. Fifth, since Mr. Wilson pays the costs if the case is a loser, he would go broke if he filed frivolous cases. It takes thousands of dollars to prepare a case for trial.

Dr. Abel learned something else he hadn't known: in Missouri and Illinois, where Mr. Wilson practices, a medical malpractice case cannot proceed unless another doctor has sworn under oath that in his opinion, malpractice has occurred. This is also the law in many other jurisdictions.

Dr. Abel asked about Mr. Wilson’s views on the “malpractice insurance crisis.” Wasn’t the “greed of the trial lawyers” directly responsible for doctors’ high insurance rates? Mr. Wilson asked whether Dr. Abel had ever considered that his own insurance company might play a role in the problem. Dr. Abel hadn’t thought of that. He promised Mr. Wilson that he would look into it.

Dr. Abel also asked Mr. Wilson about damage caps. Dr. Abel thought caps might bring down the cost of malpractice insurance, which would give Dr. Abel more money to expand his practice, take a longer vacation, or buy a bigger TV. But Mr. Wilson disagreed with this approach. He said a limitation on damages would place the risk of a doctor’s malpractice onto those who can least afford to bear it. Mr. Wilson referred Dr. Abel to this recent column from the Atlanta Journal-Constitution.

Though Dr. Abel and Mr. Wilson thought at first they had nothing in common, it turned out their dialogue about medical malpractice, which started only because they happened to be neighbors, has opened them both up to points of view they hadn’t considered before. Of course, they don’t always agree—and often they disagree vigorously—but both admit their dialogue is preferable to uninformed name-calling. They also agree that if they ever begin publishing weblogs, they will try their damnedest not to discriminate against other points of view by simply ignoring them.

Related posts:

1. Tort Reformers Should Be Held Accountable for Their Claims

2. Advice to Young Lawyers #10 (Lawyer Marrying Doctor's Daughter)

3. The "Tort Reform" Category -- All tort reform posts

Comments

[Ted]

Of course, as overlawyered has documented (and as I have commented in part on this blog previously--what was that about not "discriminat[ing] against other points of view by simply ignoring them"?),

(1) medical malpractice insurance rates are directly correlated to medical malpractice payout rates;

(2) non-economic damages caps reduce medical malpractice insurance rates;

(3) while tort reform (opposed by trial lawyers) in Missouri and Illinois requires plaintiffs to pass a fairly low preliminary hurdle before bringing a malpractice case, the majority of other states permit an attorney to name a doctor in a shotgun complaint with impunity; and

(4) among many other errors in the Atlanta Journal-Constitution op-ed too numerous to mention here, the author appears to be unaware of the study demonstrating that non-economic damages caps improve the quality of healthcare available to the poor by (a) reducing the amount of healthcare costs spent on lawyers and (b) eliminating a prime cause of doctor flight.

Best,

Ted
http://overlawyered.com

[Evan]

Relax, folks! It only looks like comment spam. Ted's actually quite welcome here, as proven by the fact that I even include a link to overlawyered on the right side of my blawg. (Can't say the same of overlawyered, but it's not my policy to complain about links.)

And Ted, I didn't discriminate against your point of view--I allowed you, by keeping my comments open, to put your views on my blawg. I didn't ignore them but considered them, and I'm sure others did as well.

Anyway, I invite readers to read my post, read the links within it, read overlawyered, do some independent research, and draw their own conclusions.

Meanwhile, I'm working on a piece along the lines of "A Trial Lawyer's Guide to Reading Overlawyered," which is on a back burner in my busy publishing kitchen at the moment, but which will hopefully appear here soon.

Regards!