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What’s New in Medical Malpractice?

Posted by Andrew J. Barovick | Mar 05, 2010 | 0 Comments

While conservatives, and the GOP in general, continue to clamor for tort “reform,” the reality is that medical malpractice payments are not only not “out of control”–they are at their lowest level since 1992, according to an analysis by Public Citizen .

So it was surprising, to say the least, that a long-time liberal and former Clinton White House lawyer would speak out in favor of tort “reform.”  Yet, as Ashby Jones, of the WSJ Law Blog  wrote, that is exactly what Lanny Davis has done.  But interestingly, Jones' telephone interview with Davis reveals something disturbing.  For a lawyer of his sterling status (current partner at McDermott, Will & Emery), he is out of touch with the day-to-day business of personal injury law and its subset, medical malpractice.

He starts out fine, speaking of the competing interests of providing for victims of medical malpractice, on the one hand, and taking care of the doctors, who, in his opinion have been forced to practice “defensive medicine,” and are close to being “push[ed] over a precipice.” 

After briefly touching on the jury's role in determining non-economic damages, he advised that “[t]he problem in the system comes when you move beyond compensatory damages and into the realm of punitive damages…to deter bad behavior…How do we know that an out-of-whack penalty is going to deter the next doctor from being negligent?”

Well, speaking of being “out-of-whack,” Mr. Davis might be interested to know that punitive damages are rarely, if ever, awarded in medical malpractice cases.  It happens “only where the actions of the alleged tortfeasor constitute gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or activated by evil or reprehensible motives.” Matter of Gravitt v. Newman , 114 A.D. 2d 1000 (2d Dept. 1985).  I think we can all agree, and I include non-lawyers here, that this type of conduct is not seen in the usual medical malpractice case.  And therefore, when Mr. Davis refers to such damages as being “the problem,” he immediately and permanently loses credibility.  “The problem,” instead, is that people like Mr. Davis feel free to speak on issues about which they are not knowledgeable.

He goes on to make certain that we know, and won't forget, the extent to which he is a dilletante in this arena.  He “really believe[s] that some plaintiffs' lawyers misuse the courts with frivolous lawsuits…There's no cost to filing a frivolous lawsuit. And there's no reason not to do it.  The bogus lawsuits that [he's] seen–the false claims cases, the securities fraud cases…[have] proven to be enormously lucrative…you can get a settlement and retire forever.”

Really?  And here I thought we were talking about medical malpractice lawsuits.  But, no need to stay on subject.  And as everyone knows, any lawyer can file a “bogus” case, and hit the jackpot, because the insurance company and its lawyers will not scrutinize the claim, will not conduct discovery, and will definitely not try the case.  No, according to Mr. Davis, the insurance company will simply throw money at you.   And naturally, all of that money the trial lawyers get from such bogus claims is pure profit, because when things are as Mr. Davis says they are, there is no need to invest tens of thousands of dollars of the trial lawyer's money into obtaining roomfuls of medical records, conducting days of depositions, and retaining sometimes multiple expert medical witnesses.

I, for one, am certainly glad that Mr. Davis took time to weigh in on tort “reform,” because it reaffirms what most of us in the trenches know quite well.  Tort “reformers” are generally out of touch with the type of law involved and the realities of day-to-day practice, and have no appreciation for what it's like to be the victim of medical negligence.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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