Illinois Civil Justice League: It Must Be Bad Lawyers...

May 10, 2005

It Must Be Bad Lawyers...

To update our post from yesterday... it must be bad lawyers contributing to the medical malpractice crisis.

Case in point: The Illinois State Bar Association released a study they commissioned on the subject of medical malpractice that reports on the jury verdicts for cases in Cook, DuPage, Madison and St. Clair counties from the early-90s to 2004. The study mentions the worn-out argument that there have only been four verdicts against doctors in the past eight years in Madison County (see the post below for more on this stat), and utilizies the same methodology for extinguishing the "crisis" in Cook, DuPage and St. Clair counties.

As Oly Bly Pace III writes:

The resulting study, titled “Medical Malpractice and the Tort System in Illinois,” set out to provide factual answers to several critical questions facing the General Assembly as it decides what, if any, changes to make in the laws governing medical malpractice.

It's the Settlements, Stupid!

For the largest statewide association of lawyers (30,000 members strong) to assert that there is no link between medical malpractice litigation and the rise in liability rates, without studying the settlement history in cases brought before the court, brings into question the integrity of ISBA's motives in helping to resolve the issue before the state legislature.

Is the ISBA unaware that much litigation in Illinois is resolved through settlements? Or is Duke Professor (Dr.) Neil Vidmar unaware of the concept of settlements in litigation?

It's the equivalent of saying that there is no real action in the asbestos litigation industry in Madison County. The St. Louis Post-Dispatch estimates that trial lawyers reap nearly $1 billion a year in asbestos winnings from Madison County, but the first case to go to trial in two years just started yesterday morning. I don't think there has been a verdict in a case since Randy Bono's $250 million verdict in 2003. Is it any wonder why there hasn't been a case come to trial since?

Is it any surprise that Professor Vidmar failed to draw the proper methodology for the study? As Ted Frank points out in his comments posted to a recent Evan Schaefer blog article:

Vidmar's been writing about this subject for years, most notoriously as a paid expert challenging the constitutionality of Indiana's caps. If he makes the same errors in the Illinois paper that he made in his Indiana paper [...] the lawyers will be happy with his results, which is why they're confident in hiring him. Vidmar may or may not be biased [...] but the selection of Vidmar to do the study was certainly a biased one.

So, the implication is this guy isn't quite as biased as Jay Angoff, but...

Therefore, to state - as their study's title does - that their report offers facts relating to medical malpractice and the TORT SYSTEM, without considering settlements, renders their study and data useless.

Which is a shame, because it's nice to see the state bar association finally get interested in how their membership is affecting other professions in Illinois.

Ted Frank (PointofLaw.com) and Evan Schaefer (Notes from the Legal Underground) had a memorable exchange about settlements in this May 2004 post, in which Evan argued that med mal wasn't just a Madison County problem and Ted argued that settlements were being ignored in the trial lawyer statistics.

Ted: "Evan, you and I both know that the bulk of medical malpractice claims get resolved in settlements based on both attorneys' perceptions of what a judge will permit a jury will deliver. So why do you persist in this transparently bogus use of a "verdict" statistic..."

Evan: "I also said there is inadequate information about the cases filed in Madison County. Your numbers don't help. We can speculate on sound footing that some of the cases filed against doctors in Madison County were settled, but the vast majority were undoubtedly dismissed without the doctors' paying anything, since that is the nature of medical malpractice lawsuits..."

However a month later, the ICJL answered Ted and Evan's speculation about Madison County suits with a ground-breaking study of medical malpractice litigation, titled "The Dirty Little Secret: Medical Malpractice Lawsuits Against Metro-East Doctors". The results were staggering and left ICJL asking...

What about the High Volume of Litigation?

For those with short memories, the ICJL study found that nearly one-third of all doctors in the metro-east had been personally named in a lawsuit between 2000-2003. ICJL data estimated that half of the Metro-East doctors were affected, either by being named personally or having one of the partners or their practice named in a lawsuit.

The ICJL study looked at 422 lawsuits filed in Madison and St. Clair counties in four years, naming 1,082 total defendants. The metro-east had approximately 950 registered physicians at that time.

And, the study showed that the crisis had nothing to do with repeat offenders. 242 physicians or roughly one-fourth of all Metro-East physicians were named only once over the four-year period.

Nearly one year later, the most interesting conclusion is the rate of failure by Metro-East trial lawyers. After harassing physicians with 422 lawsuits, only five of them went to trial with a verdict in favor of the plaintiff. That's a success rate of just over 1%.

So, to respond to Evan's recent medical malpractice question, I'd like to know: "When medical malpractice cases get dismissed, where do they go?"

The answer is more complicated than the ISBA and Professor Vidmar wish to examine in their study. Some cases get dismissed (and the doctors and their insurance companies get left with the bill). Some cases get settled (and the doctors and their insurance companies get left with the bill). That "bill" could be as little as $25,000 (I think the latest average defense cost per doctor, regardless of the outcome) or perhaps into the millions (in the case of settlements).

If ISMIE statistics show that 85 percent of St. Clair County cases and 72 percent of Madison County cases get thrown out without a payment to the plaintiff, then the ISBA study is neglecting (the most costly) 14 percent of cases in St. Clair County and 27 percent of cases in Madison County.

You can believe there's not a problem with medical malpractice litigation in the Metro-East, if you want to. 422 cases filed and only 5 "wins" for the trial lawyers in court.

You can choose to ignore the outcomes of the other 417 cases. You know, the endless depositions that take doctors away from their patients, the escalating costs of defense lawyers to get non-meritorious suits thrown out, the heartache and headaches for doctors who apparently "win" their cases 99 percent of the time.

Would you have a problem going to a doctor that was unsuccessful 99 percent of the time? Even after 422 tries? So, how can you say that we don't have a problem with medical malpractice litigation in the Metro-East?

5 Comments:

Blogger Amy Allen said...

I guess, for the ISBA, the first step to improving is admitting that one has a problem.

2:10 PM  
Blogger Eye Doc said...

Caps in Texas lowered the number of cases filed by about 50%. I guess the noble plaintiff's attorneys that keep claiming that they're protecting the public from medical malpractice decided to be a little less noble when their chances of winning the lottery dropped by half.

Let's hope we can get caps in Illinois that don't get vetoed by Blagojevich or struck down the Illinois Supreme Court.

10:25 AM  
Blogger Mark Rouleau said...

I am a trial lawyer. I personally handle medical malpractice matters and have only lost one jury trial in my more than 20 years as a trial lawyer. I would like to respond to Mr. Adomite’s comments in his article “It Must be Bad Lawyers ICJL Blog Spot May 10, 2005 http://icjl.blogspot.com/2005/05/it-must-be-bad-lawyers.html. There are many other points that he alleges with which I disagree, such as asserting that settlements should be counted as wins or victories for doctors. I can assure that I do not know any doctor who has to settle a medical malpractice case and pay money to his former patient to consider him or herself a victor in the matter. However, I agree that he made a very important point about reviewing settlement data as opposed to merely reviewing data on jury verdicts alone. This is exactly what Ole Pace discussed in his introductory comments to the study. See, http://www.isba.org/downloadnow/medicalmalpracticestudy.pdf

Mr. Pace notes that the complete information on: "closed medical malpractice claims is collected by the Illinois Department of Insurance from all insurers that provide such coverage in Illinois, as mandated by law. To this date, the closed claims data have not been made available to Professor Vidmar or to the members of the General Assembly."

Being a trial lawyer who believes in the truth and wanting to know the real facts I checked this out with one of the Republican staff attorneys who works for the legislature in Springfield and she confirmed to me that not even the legislature has been allowed to see this information, and that in large part the insurers were objecting to it becoming public information for numerous reasons. One has to wonder whether this evidence would not support their case if it were made public. We generally presume that if someone has the power to produce evidence on a specific issue that they would produce it if they thought it would prove their point.

I agree with Mr. Adomite that we should not be racing off to conclusions without this important data, as our conclusions might not be accurate without that data. It seems to me that for this reason alone the legislature should not be passing laws without even looking at this crucial evidence that is sitting in the hands of the State government.

I do not think that either Mr. Adomite or myself would want a jury to consider a case where they did not even take the time to review what everyone agrees is crucial evidence. I'll bet that if a jury did that we would not think much of them or the lawyers who did not take the time to show them that evidence. What should we think of a legislature that will not take the time to look at this settlement data that is sitting in the hands of the Department of Insurance?

In any case I agree with Mr. Adomite that this is very important information and therefore ask him to join me and others in asking the legislature to order the Illinois Department of Insurance to make this data available to their staff and to organizations such as the ICJL and ISBA to review in this extremely important data before reaching any conclusions.

Mark Rouleau
rouleau-law@afo.net

4:00 PM  
Blogger Allen Adomite said...

Mark:

The entire point of the post was to point out the fact that the issues are more complicated than "just five verdicts" or "just a few frivolous suits". Perhaps I was too light with my sarcasm.

I live in Madison County and this is perhaps the first time I've seen trial lawyers fail to mention settlements in a conversation...

...just come down and browse our phonebooks, and I can show you about a hundred sales pitches that revolve simply around settlements.

So imagine my surprise when I kept hearing that the "entire" problem really consisted of "only" five verdicts. Remember, this argument has come from the same people who denied any problem existed for nearly a year, and then blamed everything on bad stock investments for another year. If this were a lawsuit, I think the complaint would have been amended about ten times already.

While editorial sarcasm might have fueled my argument that 99 percent of lawsuits in the Metro-East are "failures" for trial lawyers, I actually believe that doctors lose 100 percent of the cases against them...at that is the entire point of the medical liability issue.

Regardless of whether IDPR has released full statistics on settlements, ISMIE released claims data more than a year ago showing 85 percent of St. Clair County claims and 72 percent of Madison County claims result in no payment to the plaintiff.

Some might say that the doctors "won" in these 85 percent and 72 percent of the cases, but ask the doctors...they don't feel like winners.

I found your note to the May 2004 ISBA Journal about the chamber's advertising interesting:

As lawyers, many of us have an in-person, up-front view of the system with all its warts. Believe me, I know a lot more about how it works than any doctor or chamber of commerce does. Of course it's not perfect, but that is inherent because people are not perfect.

I find it interesting that you can find such empathy for an imperfect court system full of imperfect lawyers and judges, yet there seems to be no empathy in your profession for imperfect doctors and hospitals.

Are doctors any less human?

Is a lawyer's work just less important and therefore more tolerant for imperfection? (please respect my use of sarcasm here)

Perhaps your profession's leadership just fails to express the compassion that individual lawyers actually feel for the medical profession. Either way, the lack of respect shown by lawyers towards doctors in the Metro-East is something that won't be solved by a cap or any other legislation. And it's far worse than any advertising that might have offended you.

As a Madison County resident, I have a unique view on this crisis. It goes beyond the economics of insurance premiums and courtroom verdicts. The passion doctors feel also has a lot to do with respect and the lack of it they've received for years in a broken judicial system.

Doctors in Illinois are asking back for the dignity of their profession, something that's been stolen from them in the courtroom. The trial lawyer response has taken nothing but more of their dignity.

This issue is about more than dollars and sense. Patients can see it. Legislators now see it. And, after a trial lawyer assault that's entering its third year, not even a "sorry" can fix it now.

Thank you for your thoughtful comments. It's been awhile since a legal reformer and a trial lawyer have actually agreed on a few things, even if we disagree on others.

10:15 PM  
Blogger marissa said...

This comment has been removed by a blog administrator.

2:21 AM  

Post a Comment

<< Home



For more information on Today's legal reform news, check out the ICJL News Update, available everyday by clicking on the gold button above. For recent news headlines from ICJL.org, check out the ICJL Legal Reform News section, available under ICJL Resources.


 

© 2005 Illinois Civil Justice League