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My Suggestion For Reducing Costs Of Medical Malpractice

Posted by Andrew J. Barovick | Sep 18, 2010 | 0 Comments

A Florida judge with diverticulitis trusted his surgeons to perform the surgery he needed in the proper manner.  Unfortunately, his trust was misplaced, as they left a foot-long sponge inside his body .  And to make matters worse, it took so long for his doctors to figure out what had happened that the sponge was literally rotting inside him before the proverbial light went off.

This scenario depicts a classic case of medical malpractice.  It doesn't get more clear cut than this.  And yet, as Fox News has been kind enough to point out, the judge/victim is bringing a lawsuit against the obviously negligent surgeons.

That is ridiculous.  Yet it is telling.  Clearly, the judge's lawyers made a pre-suit claim of some kind, through which the hospital and its surgeons were notified of the judge's misfortune.  That a lawsuit is proceeding tells you that these defendants have essentially said to the judge, and his medical malpractice attorneys, “Screw you. We won't pay you a dime unless you force us too.” And that, my friends, is one reason why the medical malpractice system in this country is as costly as it is.

Here you have an open and shut case of negligence.  You can call it negligence per se. You can call it res ipsa loquitur (as in, the thing speaks for itself, as in such an event never could have happened in the absence of negligence).  The ethical and cost-efficient thing to do is for the defendants to make an immediate and realistic settlement offer.  But this was not done here, and it is rarely done anywhere in the U.S.  Instead, the defendants will litigate the case, forcing significant expenditures of money and time gathering records, taking depositions, retaining experts, and clogging the courts.  Why?  It doesn't really matter, since the result is the same.

But a cynical person (like myself) would say the following. The insurance company hopes to wear down victims like the judge, in the hope that he will ultimately accept less money than he should get, just to have the case over with.  The lawyers for the insurance company are complicit as well.  If they settle a meritorious case early, than they don't get to bill the heck out of the file, which they usually do to justify their existence, and pay themselves a decent salary.  If the victim is elderly, or even just sickly, insurance companies have been known to drag their feet, and keep the litigation going, until the medical malpractice victim dies.  That way, they avoid having to pay damages for lost earnings.

So, you want tort “reform”?  You really want to reduce costs?  How about doing the right thing, at the right time?

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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$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.