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July 30, 2004

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susan

Evan, while I agree that the nazi analogy is ridiculous, not to mention extremely disrepectful, it is indicative of how hopeless many of the doctors around here feel. My husband is a doctor and he and most of his colleagues are trying to figure out how/if they can stay. Regardless of which industry or group is at fault, nothing's been done to help solve the problem. And while the attorneys and the tort reformers spend their days spewing statistics that suit their cause, our doctors are forming their escape plans.

Evan

Susan: Thanks for the comment. I agree that spewing biased statistics is no way to solve the problem. And I want good health care to be available in the area. However, at least according to some unbiased sources, the problem with the insurance rates (which I've never thought was due to lawyers) seems to be working itself out. For example, see this article, which I mentioned in the post I did yesterday about the National Review article.

susan

We saw that article as well. However, our recent 56% increase in malpractice insurance (with a clean record) says otherwise. My husband's a younger physician and they typically aren't covered by ISMIE because they don't write policies here anymore. And even though the ISMIE docs are relieved, a 7% increase, on top of a 35-50% increase the year before, is still hard to swallow. And every time your rate goes up, your tail policy increases. Just to leave the area would cost us approximately two times the most recent yearly premium. It's not a stretch to say that some doctors are literally trapped here.

You note that you've never believed that lawyers were the cause of malpractice increases. My husband and I are not attorney bashers, nor do we blindly believe in the tort reform platform, but it is frustrating to us that the legal profession refuses to accept any portion of the responsibility. I believe that many groups, including doctors, insurers and lawyers are to blame. But there seems to be a real reluctance on the part of the legal community to admit that they might be part of the problem.

Evan

Susan: You are right that I am reluctant to believe that lawyers are part of the problem. The charge I hear most often about lawyers is that they file frivolous lawsuits. I've explained at length on this site why I just don't believe that--for one thing, lawyers who file frivolous lawsuits quickly go broke; for another thing, it's a violation of the rules. The few lawyers in Madison County who help victims of medical mistakes seek compensation are some of the smartest lawyers I know. I also know they turn away far more cases than they accept.

If you are implying that the "legal community," i.e., lawyers, should be blamed for the laws that are on the books that allow liability to be imposed against doctors for mistakes that cause harm--well, I don't agree there either. On the other hand, every citizen is certainly entitled to voice his or her opposition to the laws that are on the books, and do what our democracy allows them to do to try to change those laws. I applaud such constructive democracy (as long as there's no factual distortion involved), and if any lawyers are impeding such action, then I don't agree with the lawyers.

If you have any specific charges to make against lawyers, I would certainly try to respond to them. And, as I've said, I appreciate your intelligent comments.

susan

Evan: I don't have a specific charge to bring against lawyers. And when I referred to the "legal community" bearing some responsibility, perhaps a better choice of words would have been "legal climate". I don't pretend to know what transpires in the Madison County court system, but I have seen statistics cited by neutral parties (other than the ILCJ and ATRA) that show that Madison County has filed the most class actions per capita the last couple of years. I also seem to recall from the Griffin Bell flap that over one quarter of all asbestos suits in the country were filed here last year. It also appears to me that suits that don't cut it elsewhere (welding rods, light cigarette classes) are successful here. My point is simply that there's some type of attraction here that may be fueling the higher premiums.

And I don't believe in the frivolous lawsuit argument either. My belief is that there's a legitimate complaint/incident behind most cases. Although I'm not sure we do enough to distinguish between malpractice and a bad outcome due to other factors. However, the practice of naming multiple defendants and subsequently dropping them does strike me as unfair. And we've had this happen to too many colleagues for me to believe that it's purely anecdotal. I've heard the argument that it has to be done that way to get to the discovery stage, but it leaves the doctor with a black mark and higher premiums.

I do place a great deal of blame on the insurance companies. They're in the business to make money and I don't put it past them to crank up the rates when they see an opportunity to exploit a situation. My problem is this: Illinois is controlled by democrats. As highlighted in the newspaper this week, attorneys are big contributors to the democratic party and would seem to have a stake in solving this problem. So where's the crackdown on insurers? Why haven't we seen legislation to deal with them?

I truly appreciate your insight. Unfortunately this issue has so polarized the people in this area that it's hard to have a discussion without people getting immediately incensed one way or the other. They don't want to discuss it and, God forbid, gain an additional perspective. Most are looking to assign blame. Which has gotten us exactly nowhere.

Evan

Susan: I've written about class actions, Griffin Bell, etc. on this weblog before (although not usually about particular cases). I don't want to rehash everything again when it's all in the archives, but I will say that if insurance companies are tying medical malpractice premiums to results in other types of litigation, that would be interesting to know. But I don't think that's the answer, since states around the country--not just Southern Illinois--are reporting crises in medical malpractice insurance premiums. If the high premiums in Madison County are due to over-litigiousness in Madison County, then you wouldn't expect to see the problem occurring anywhere else. The problem would be limited to Madison County.

You also write about "the practice of naming multiple defendants and subsequently dropping them." As I understand medical malpractice litigation, there is no doubt that this occurs sometimes. The reason is simple: All possible culpable parties must be sued at the beginning of the case in order to preserve the statute of limitations. In Illinois, the statute of limitations is two years. After the injured party seeks a lawyer and the initial investigation is completed, this time is often almost up, so the initial complaint might contain a lot of defendants. If the lawyer fails to sue someone who should have been sued, it will be the lawyer who ultimately will have to pay the damages, following a legal malpractice suit against the lawyer.

There is nothing sinister about including all doctors who might be liable in a lawsuit to preserve the statute of limitations. Even defense lawyers agree that it's proper. The question is, could the doctors live with a longer statute of limitations? Would they be willing to waive the defense of the statute of limitations altogether? In many cases, that would take care of the problem you raise. I don't think it's much of a solution, though, because I don't think the doctors would agree to it. I wouldn't if I were a doctor. I'd keep the statute of limitations short, even if it meant I might be involved in some lawsuits, at least for awhile, from which I'm dropped later because it turned out I'd done nothing wrong.

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