It Must Be Bad Lawyers...
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?