I just heard from the lawyer defending a med mal case on which I gave expert opinion. The case was filed by a woman who claimed her miscarriage was caused by a hormonal birth control method that her doc initiated during an early pregnancy that she charges he should have diagnosed.
I can’t give further details, but suffice it to say that medically, this plaintiff had no case. The birth control in question does not cause miscarriages and there was no reason the doctor would have suspected that she was pregnant at the time the method was initiated. Although the doc did not do a pregnancy test, it would have been negative since the patient was only 1-2 days post conception at the time.
The case settled for $7,500 before any depositions were even taken.
The Defense Lawyer was thrilled. As far as she was concerned, $7,500 is “essentially nuisance”. With just a few hours work on my part, I had saved her thousands of dollars and countless man hours trying this case. Since the doc involved was a hospital employee, he was not named, so no harm was done. She wants to use me again as an expert.
The Plaintiff’s Lawyer made a few thousand bucks – not bad for a couple of hours work. He’s learned that these nuisance cases may not be windfalls, but if you file enough of them, they pay off. In fact, they’re the bread and butter of his practice, and are probably putting his kids through college.
The Plaintiff may not have gotten rich but this nuisance case has given her enough cash to pay off some credit card debt or take the kids to Disney World. Plus, she has a story to tell everyone she knows. Those doctors caused her miscarriage, and they had to pay. Not as much as she would have wanted, but they paid nonetheless. Her lawyer said something about “no admission of guilt”, but she doesn’t believe that – her lawyer just wasn’t as good as he could have been. Certainly not as good as her cousin’s lawyer, who’s promised her a hundred thousand dollars for her premature baby.
Friends, acquaintances and friends of friends of the plaintiff will hear the story. They will tell their friends, who will tell their friends. The story may even make it into an Internet chat room.
Some women using the same contraceptive method will hear the story and become worried. If it causes miscarriage, what will it do to their future fertility? More than a few will be frightened enough to stop their birth control, and will have an unplanned pregnancy. Perhaps an abortion. Perhaps another child they cannot afford to raise, either financially or emotionally.
I wouldn’t call this case a nuisance. I’d call it a tragedy.
Which is precisely why, when your schedule and conscience allows, to be available for such expert testimony. Nothing wrong with making some extra coin for being on what you feel is the right side of a case.
I am from the TX border area, and like many areas that are deeply impoverished, there are plenty of people looking for an easy way out. Lawyers are subjected to state bar association disciplinary boards in cases of abject negligence or maleficence, but let’s just say that “do no harm” isn’t part of their swearing in process.
Small-dollar cases like this can’t be de-incentivized (?) without choking off legitimate claims. It’s sad, but every big system has its abusers at the scum-end of the feeding trough. (Disclaimer: my father is an estate planning attorney 🙂 )
Which goes to show why frivolous (ie, “non-meritorious”) suits should never be settled. Make it expensive and inconvenient for the plaintiffs bar to bring nuisence suits, and they *will* stop. Simple economics. They keep bringing them because they can.
I work in Canada- I don’t think that this would have made it out of the plaintiff’s lawyer’s office up here- or atleast I’d like to tell myself that
Not to mention the harmful effects to the defendant, the physician who prescribed this method. His/her malpractice insurance will likely go up, since their record now shows a settled lawsuit on file, and this record will now follow them wherever they go.
I agree, we need tort reform in this country. But, unfortunately, I think this issue ranks pretty low on the list of all the things this country needs to fix.
Dinosaur,
You can’t prevent two parties from reaching a private agreement and force them to go to trial–that’s absurd. The doctor’s not the one paying the bill for the attorney (plus he’s not even the real defendant). Even from the POV of defense attorney, this shouldn’t have gone to trial as it would have wasted time, money and grief for all sides. “Court costs” don’t recoop raw time nor opportunity cost for those involved.
Also, “frivolous” is something that is ultimately determined by judicial review, yet this case didn’t’ even make it to deposition. You can’t unilaterally say that something is frivolous because you know as a physician that something is physiologically impossible; that’s something to be discovered.
But don’t worry–if an attorney is known to bring questionable cases time and time again, even if they aren’t disciplinarily actionable, s/he will essentially be crapping where s/he sleeps by pissing off the bench and wouldn’t be good for business, ultimately. Darwin works for them too, in a twisted way. 😉
Michelle Duggar claims that the pill caused her to have a miscarriage, and that led to their decision to have so many kids. Wonder if there was a “pop culture/saw it on the teevee” effect here….
The only immediate loser in this case was the physician. Report to National Practitioner Databank, higher insurance rates, more hassles getting credentialed, less confidence/trust in patients.
Ultimately the community where the doctor practices will be the bigger loser. Enough BS suits like this and the doctors will just leave. After that, the moms can just squat over a mirror and deliver their babies freestyle.
You say the defense lawyer was thrilled that you saved her countless man hours trying this case. I don’t understand. I thought lawyers charged by the hour. Wouldn’t she have made more money by dragging this case out.
Mary Scott –
The lawyer was an in house lawyer for the hospital. She does not charge them by the hour. Part of her job is to save them money.
Thanks for visiitng.
TBTAM
Anonymous who posted the mean comment-
While I am happy to enter into intelligent discussion and even debate, I will not tolerate insults and inflammatory attacks on this blog. I have removed your comment.
TBTAM
enrico, I agree that you can’t prevent private parties from settling, but you can change the incentives in ways that change the likely course of negotiations.
In particular in this case, if there were a “loser pays” rule, then it would not be in the best interests of a defendant with a strong case to settle such a case for nuisance value. Under the current system, say it costs $8000 to defend, it’s in the defendant’s best interest to settle for $7500*, because if they “win” they have to pay their defense costs. Under a “loser pays” rule, the defendant would know that they would be reimbursed in the very likely case that they prevailed, so they don’t lose money defending.
The loser pays rule encourages settlement in small meritorious cases, because frivolous defense is a potential problem as well.
-dk
* unless the defendant wants to develop a reputation for never settling, which actually isn’t a bad idea
http://www.kevinmd.com/blog/2008/07/settled-for-7500.html#comments
Good Job! 🙂