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VOL. 125 | NO. 2 | Tuesday, January 5, 2010

Docs Deflect Increasing Malpractice Claims

By SCOTT SHEPARD | Special to The Daily News

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“The financial and emotional costs of professional liability litigation are tremendous; trying to avoid lawsuits involves every day of my life, every judgment that I make, and every order that I write. Is that not sad?”

– Hugh Francis III
Partner, Memphis Surgery Associates

Tennessee doctors continue to fend off the vast majority of malpractice suits filed, but the five-year trend is unmistakable: The price of success grows higher every year.

Physicians and their insurance companies traditionally close up to 85 percent of malpractice cases without paying a penny to plaintiffs. But in the latest year of data available, 2007, the cost of those wins was up 17.5 percent, following an 8.4 percent rise a year earlier.

Figures are compiled by the Tennessee Department of Commerce and Insurance, based on reports submitted by individual carriers and providers.

Of 3,043 cases closed in 2007, just seven went to court while another 492 were settled out of court. The other 2,544 just died on the vine.

“Obviously, too many medical malpractice suits are being filed,” said general and vascular surgeon Hugh Francis III, a partner at Memphis Surgery Associates. “Tremendous is the cost of defending all these suits. It would be a mistake to underestimate the significance of this financial burden.”

Hidden costs

Contending with malpractice suits costs doctors in a myriad of ways, said Steven C. Williams, president and CEO of State Volunteer Mutual Insurance Co., the largest malpractice carrier in Tennessee.

Professional time is burned in meetings with attorneys, giving depositions, and possibly a trial. Elective procedures are either postponed or turned over to another doctor.

“This effect on patients is part of the non-financial cost to the public,” he said.

Often it’s the head pathologists and radiologists who take the brunt of the burden. Virtually every patient has lab work and imaging services, so the names of the department heads appear on the medical charts, even though they perform little or no patient care.

But having their names there means they are invariably included on a long list of co-defendants. It can cost $7,000 to extract a single pathologist from one case, so it adds up quickly.

Personal injury and medical malpractice are among the most precarious fields of law, and lawyers say they are loath to file frivolous suits on a contingency basis. A suit can drag out for several years, and the attorney doesn’t get his cut until the end.

“Defendants have superior resources, usually hiring two or three times as many experts on each issue than the patient can afford; this impacts results,” said John A. Day, a personal injury and malpractice attorney at the Nashville firm of Day & Blair. “You can see defense costs are increasing – defendants and their lawyers are fighting harder.”

Defense attorneys also tend to be more specialized and so develop a more effective knowledge base against the plaintiff lawyer who’s also handling general law to pay the bills.

Unexpected results

Tennessee is among the lowest-risk states for doctors, in part, Day said, because of a very old legal principle still in use in Tennessee, known as the “local standard of care.”

Most states have adopted statewide standards to assess care, but Tennessee cases can still be argued county by county.

“This particularly harms patients in rural areas because the defense claims that only rural doctors know how medicine is practiced in rural areas,” Day said.

Twenty years of bad press about the effect of malpractice suits on health care costs also predisposes jurors against plaintiffs, Day said.

Medicine is not an exact science, and even when physicians do everything perfectly the results may not be pleasing, Williams said. That particularly can be the case in cities like Memphis and Nashville, where world-known specialists often attract the most complicated cases, with a host of things that can go wrong.

“Medical outcomes that are not as expected or hoped for are seldom the result of anyone’s substandard care,” he said. “Sometimes patients believe that somebody ought to pay and hope that they can obtain money; there are some lawsuits that are utterly groundless and that one might say should not be filed, but they are seldom successful.”

One way to reduce that number would be for physicians to help patients understand on the front end that not all outcomes are satisfying.

“Better communication between physicians and their patients needs continued improvement,” said Gastroenterologist Robert Kerlan of Memphis Medical Specialists.

When that doesn’t work, settlements are often necessary to cut the loss of time and eliminate the risk of a lottery-sized jury award, he said.

The number of out-of-court settlements tends to represent the number of cases with bad outcomes and enough reasonable doubt by defendants.

It’s only the cases in which both sides are most dramatically opposed that end up before a judge. On one side a plaintiff feels profoundly wronged and his lawyer thinks he can prove it. On the other side a doctor and his lawyer think they can prove just the opposite. At the end of the year, that’s barely a quarter of 1 percent of all cases, but those cases are on the minds of every doctor, every time they step into an exam room.

“The financial and emotional costs of professional liability litigation are tremendous; trying to avoid lawsuits involves every day of my life, every judgment that I make, and every order that I write,” Francis said. “Is that not sad?”

Scott Shepard is a freelance writer and can be reached at scottbuzz@juno.com.

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