Editor’s Note: Copyright © 2001 by Medical Economics. Reprinted by permission from Medical Economics magazine, www.memag.com. This article has been edited for length.
Attorneys Jeffrey Allen and Alice Burkin are experts at suing doctors. They’ve been representing medical malpractice plaintiffs for more than 15 years as partners at the Boston firm Lane Altman & Owens. Unlike many personal injury lawyers, they don’t solicit business through ads in the Yellow Pages. Instead, they get their clients via word-of-mouth recommendations or referrals from other lawyers. Medical Economics Senior Editor Berkeley Rice discussed with them which doctors get sued and why.
Choosing “good” cases and screening out “bad” ones
Q. Let’s face it: Doctors generally don’t have much respect for malpractice plaintiffs’ lawyers. They think of you as greedy, unscrupulous ambulance-chasers who will take any case-no matter how frivolous-if there’s a chance of a quick settlement.
Allen: I know doctors think that, but they’re wrong. If we really did that, we’d be out of business. Given the economics of malpractice law, any lawyer who takes frivolous cases is going to go bankrupt. If you bring a weak case, the insurance companies won’t settle; they’ll fight you all the way, and you’ll probably lose at trial. That means you’ll end up losing not only your time, but also the $20,000 to $30,000 it costs to bring a case to trial.
Q. How do you screen prospective claims to avoid frivolous cases?
Burkin: We review dozens of claims for every one we actually accept. I spend an enormous amount of time on the phone talking to potential clients. Most of them never make it into the office.
If the case sounds promising-and only a third of them do-we invite the client in for an initial interview, which takes about two hours. Then, if the case still sounds good, we’ll request medical records. Only if the records suggest negligence do we send them out for review by our medical experts.
Q. When you send the records out for review by your experts, is that mainly to determine whether negligence has occurred?
Burkin: It’s much more complicated than that, because we have to prove negligence, damages, and causation. We ask our experts several questions: Was the doctor’s diagnosis correct? Was the treatment appropriate? Was the plaintiff damaged? And did the doctor’s negligence cause the damage? Only if our expert answers Yes to the last question will we file a suit. And that happens with only two out of every 30 potential cases.
Weighing Legal Expenses Against Potential Damages
Burkin: Because of our time investment and costs, we really can’t consider a case unless we can expect a payoff of at least $200,000 in damages, and even that’s really not enough. If we end up taking the case to trial, we’re probably going to spend $20,000 to $30,000 or more. So we have to make a business decision: Are the potential damages worth the time and expense we’ll have to invest to win?
Q. Isn’t that a pretty cynical way to evaluate the claim of a badly injured patient?
Burkin: I’d say it’s the only realistic way to do it, even though it’s one of the sad things about the economics of this business. If the damage is, say, $50,000, that may be a big deal for many people, but it’s not enough to make the case worthwhile for us.
Q. What happens to those people?
Burkin: They end up with those firms you see in the Yellow Pages.
Q. How about the plaintiffs themselves? Do they affect your decision to take the case?
Burkin: Definitely, because the plaintiff’s age and economic status affect the value of the damages. That’s why we’re reluctant to take on elderly plaintiffs: The damages will be less, because their life expectancy is limited and there’s not much claim for lost income. And yet the cost of preparing those cases may be higher if the illness has lasted for many years.
Q. I’ve heard that some plaintiffs’ lawyers use the shotgun approach: suing every doctor involved in the case, no matter who’s really to blame, hoping some will cave in and settle. One lawyer told me, “You shake the tree and see what falls out.”
Burkin: Some lawyers do use that method. But our approach is to sue as few doctors as possible.
Q. Why? For economy’s sake?
Allen: We don’t want doctors on trial who don’t belong there because it makes our case more difficult, particularly if each one has his own attorney. Let’s face it: I’d much rather go up against one lawyer than four. Why have to deal with four different defense strategies? Why let your client face four cross-examinations?
It also affects our credibility with the jury. Most jurors don’t want to find doctors negligent, because every one of them depends on his or her own doctor. So it’s hard to convince them that one doctor was negligent, and even more difficult to convince them that two or three screwed up. If we don’t convince them about one of the doctors, our credibility is damaged, which weakens our case against the others.
Settling a Case Versus Telling it to the Judge
Q. How do you decide whether to settle a case or go to trial?
Burkin: Very few of our cases actually go to trial. That’s not because we’re looking for quick settlements, but because we take only good cases, and we prepare every one as though it’s going to trial. That way, if we do end up in court, we’ll be 100 percent ready. The insurance companies know that, so they’re more likely to settle. But they don’t settle the frivolous cases. They settle the ones where there’s clear liability, because they’re worried about getting hit with big verdicts in court.
Q. You say you settle most of your cases. Does that mean you prefer to avoid trial?
Burkin: No, we love to try cases, because it’s very exciting. After all, we are trial lawyers. But we don’t gamble with our clients. If you go to trial, you risk getting nothing. So if you can get a fair settlement and avoid that risk, you have to do it. Sometimes we do struggle with the decision if the insurance carrier offers a borderline settlement when we think there’s a good chance of winning more at trial. At that point, we really have to put our egos aside and ask what’s best for our client.
Why Some Doctors Are More Likely to Get Sued
Q. Why do some doctors get sued more than others?
Burkin: I’d say the most important factor in many of our cases-besides the negligence itself-is the quality of the doctor-patient relationship. People just don’t sue doctors they like. In all the years I’ve been in this business, I’ve never had a potential client walk in and say, “I really like this doctor, and I feel terrible about doing it, but I want to sue him.” We’ve had people come in saying they want to sue some specialist, and we’ll say, “We don’t think that doctor was negligent. We think it’s your primary care doctor who was at fault.” And the client will say, “I don’t care what she did. I love her, and I’m not suing her.”
Q. It sounds like the decision to sue is based as much on perceived negligence as actual negligence.
Burkin: Exactly. You see, all of our clients have had bad medical results. The big question is: Was it just an unfortunate result, or was it malpractice? When a patient has a bad medical result, the doctor has to take the time to explain what happened, and to answer the patient’s questions-to treat him like a human being. The doctors who don’t are the ones who get sued.
Allen: A lot of people come to us because they want us to review their medical records and figure out why something went wrong. They’ll say, “I asked the doctor, but he didn’t explain anything.” Now the explanation may not be simple, but you can’t just ignore your patient’s question, because sooner or later the truth will come out. Even if the patient doesn’t get the whole story herself, we will when we review the records. That’s why arrogant doctors are the ones who lose.
In one case, we found a letter the doctor had written in response to the patient’s questions. He told her he couldn’t tell her why her problems had occurred, and suggested she talk to someone else. Now that’s sheer arrogance. He might as well have given her directions to the nearest plaintiffs’ attorney.
Q. Does arrogance continue to be a factor during the malpractice suit?
Allen: Absolutely. One of the things we try to find out in a deposition is what effect the doctor is likely to have on the jury. That helps us decide whether to settle or try a case. If he’s arrogant, the jury will hate him. That affects not only the amount we’ll seek in a settlement, but also how we’ll try the case if it doesn’t settle. In some cases, the doctor is such a piece of work that we’ll call him as a witness even before we put our client on the stand. We hope he’ll make the jury so angry that our case becomes relatively easy.
Q. You keep saying “he” and “him” when you talk about arrogant doctors. Is that intentional?
Allen: Well, I don’t want to be sexist, but I’m afraid most of our defendants-particularly the arrogant ones-are men. And the surgeons tend to be the most arrogant of all. We once tried a case against a surgeon who sat there, expressionless, throughout the trial. One day, after court had adjourned, I asked his defense attorney, “Where’s the guy’s wife? How come she’s not … sitting in the front row, making him seem more human?” The lawyer said, 7quot;This guy doesn’t want anybody to see his judgment questioned, particularly his wife.”
Now that was a very tough trial for us, because we didn’t have a strong case. But after it became clear that the jury didn’t like this guy, we ended up settling for a sizable sum. I still think we would have lost that case if the doctor had been more human.
Doctors’ arrogance usually becomes apparent during the deposition. Many resent being questioned or criticized, and they’re angry at the legal system. But angry defendants make perfect targets for us, particularly when they’re on the witness stand.
Expert Advice on How Not to Get Sued
Allen: Once you’re sued, you’ve already “lost,” no matter what the outcome. You’re going to suffer emotional stress, major expense, and serious damage to your reputation. You’re also going to lose income from the days or even weeks you’ll spend away from your practice in depositions or in trial.
Burkin: The best way to avoid getting sued is to establish good relationships with your patients. The secret to creating those relationships is really very simple-it’s not rocket science. You have to treat your patients with respect. Take time to talk with them, and even more important, to listen. When you send patients lab reports, add a personal note. Try to return calls promptly. If you can’t do it yourself within a reasonable time, have someone else call. If your waiting room is backed up, why not send someone out to say, “We’re sorry you’ve had to wait so long,” and explain why you’re running late? And when patients finally get to see you, offer your own apology. If that doesn’t happen, patients get the message that you don’t care how long you’ve kept them waiting.
Allen: A couple of other general rules: Write your charts as though they’ll be read by plaintiffs’ lawyers, not just by other medical personnel. Be accurate, and be thorough, but don’t put anything in the chart that you don’t want read aloud before a jury.
Finally, if you are sued, forget what you think of the legal system. Check your arrogance at the door, and follow your lawyer’s advice. Remember, no matter how much you know about medicine, you’re not an expert on malpractice law. Your lawyer wouldn’t try to take over for you in the operating room, so don’t tell him how to handle your case. And don’t assume you’re brighter than us plaintiffs’ lawyers. Remember: once you’re sued, you’re in our OR.