How plaintiffs' lawyers pick their targets

Malpractice Briefing

How plaintiffs' lawyers pick their targets

Two top malpractice attorneys explain why some physicians are more likely to get sued. Basically, it's a business decision, but some personal factors—like a doctor's arrogance or poor bedside manner—can also weigh heavily.

Attorneys Jeffrey Allen and Alice Burkin are experts at suing doctors. They've been representing medical malpractice plaintiffs for more than 15 years as partners at the Boston firm of Lane Altman & Owens. Unlike many personal injury lawyers, they don't solicit business through ads in the Yellow Pages. Instead, they get their clients via word-of-mouth recommendations or referrals from other lawyers. They handle every case as a team, from the initial client interview to the depositions, settlement negotiations, and, if necessary, trial.

Last winter, at a CME seminar on liability prevention sponsored by Harvard Medical School, Allen and Burkin gave a joint presentation entitled, "What the plaintiff's attorney considers before suing you." Not surprisingly, the physicians in the audience paid close attention.

Medical Economics Senior Editor Berkeley Rice was there too. Afterward, he sat down with the two attorneys to explore in more detail the question of which doctors get sued, and why.

Choosing "good" cases and screening out "bad" ones

QLet's face it: Doctors generally don't have much respect for malpractice plaintiffs' lawyers. They think of you as greedy, unscrupulous ambulance-chasers who will take any case—no matter how frivolous—if there's a chance of a quick settlement.

Allen: I know doctors think that, but they're wrong. If we really did that, we'd be out of business. Given the economics of malpractice law, any lawyer who takes frivolous cases is going to go bankrupt. If you bring a weak case, the insurance companies won't settle; they'll fight you all the way, and you'll probably lose at trial. That means you'll end up losing not only your time, but also the $20,000 to $30,000 it costs to bring a case to trial.

QHow do you screen prospective claims to avoid frivolous cases?

Burkin: We review dozens of claims for every one we actually accept. I spend an enormous amount of time on the phone talking to potential clients. Most of them never make it into the office.

If the case sounds promising—and only a third of them do—we invite the client in for an initial interview, which takes about two hours. Then, if the case still sounds good, we'll request medical records. Only if the records suggest negligence do we send them out for review by our medical experts.

Allen: Requesting records is an important step for us, because it means we're starting to spend real money: maybe $1,000 or more just for the initial search, and another $1,500 to $2,000 if we send the records out for review by our experts. Now that's our own—or rather the firm's—money, not the client's. So we have to consider whether the case is worth that initial expense.

Burkin: With complicated cases, the records can run into thousands of pages. We ask for the most pertinent records at first, then more as the case develops. It can take four or five months before we get everything we need from the hospital and the doctors. You can't believe what we have to go through to get this information.

QWhen you send the records out for review by your experts, is that mainly to determine whether negligence has occurred?

Burkin: It's much more complicated than that, because we have to prove negligence, damages, and causation. We ask our experts several questions: Was the doctor's diagnosis correct? Was the treatment appropriate? Was the plaintiff damaged? And did the doctor's negligence cause the damage? Only if our expert answers Yes to the last question will we file a suit. And that happens with only two out of every 30 potential cases.

Say a patient has a palpable lump that looks suspicious on the mammogram, but her surgeon decides that it's benign and doesn't need to come out. By the time she's diagnosed with breast cancer, it's too late. Now my expert surgeon will establish that under those circumstances, the standard of care is that the palpable lump should have been removed. So we'll sue the surgeon; but I still need an expert oncologist to determine what difference the surgeon's inaction made.

For example, if the patient sees the surgeon in January, is diagnosed with breast cancer in May, and dies in November, the oncologist may say the cancer was probably already at stage IV when the surgeon first saw her, with little to no hope of long-term survival. So you have negligence and terrible damage, but you don't have causation because you can't show that the delay in diagnosis caused the damage. As a result, we wouldn't take that case.

Weighing legal expenses against potential damages

Allen: Even before we request records, Alice and I will sit down and evaluate the case. The first thing we need to assess is the dollar value of the damage. If there's no damage, then there's no case for us, no matter how badly the doctor may have screwed up. I could be more compassionate about it, but that's the real basis for our decision: You establish the damage first, then the liability.

Burkin: Because of our time investment and costs, we really can't consider a case unless we can expect a payoff of at least $200,000 in damages, and even that's really not enough. If we end up taking the case to trial, we're probably going to spend $20,000 to $30,000 or more. So we have to make a business decision: Are the potential damages worth the time and expense we'll have to invest to win?

QIsn't that a pretty cynical way to evaluate the claim of a badly injured patient?

Burkin: I'd say it's the only realistic way to do it, even though it's one of the sad things about the economics of this business. If the damage is, say, $50,000, that may be a big deal for many people, but it's not enough to make the case worthwhile for us. So we'll turn it down.

QWhat happens to those people?

Burkin: They end up with one of those firms you see in the Yellow Pages.

Allen: Actually, this isn't quite as cynical as it sounds. Say you've got a case that settles for $210,000. In Massachusetts, our contingency fee on that amount will be $80,000—40 percent of the first $150,000, and 33.3 percent of the balance. So our client's share is down to $130,000.

Then let's say our out-of-pocket expenses were $30,000. The client is left with only $100,000 of the $210,000 settlement, and we're in the awkward position of getting more than the client. Now, that's a situation I don't like being in—even though we explain our fees and expenses to the client in advance. That's why we generally turn down cases that are worth less than $200,000.

Burkin: Another reason we don't take small cases is that they can cost as much to prepare as the big ones. The expense for filing the suit, getting the records, conducting the depositions, and paying our experts is pretty much the same whether the case involves $100,000 or $1 million in damages. Of course, with major cases we're more willing to spend another $15,000 to $20,000 for medical experts or medical illustrations if we feel it's necessary.

QSo the potential recovery is the major factor in your decision?

Burkin: It's actually a combination of damages and negligence. The clearer the negligence, the less damages we need because there's less risk of losing. For example, we once took a case where a doctor had operated on the wrong knee. Now we never thought that one would bring in $200,000, but we knew it was something the jury could easily understand, and it wouldn't cost us a lot for medical experts.

QHow about the plaintiffs themselves? Do they affect your decision to take the case?

Burkin: Definitely, because the plaintiff's age and economic status affect the value of the damages. That's why we're reluctant to take on elderly plaintiffs: The damages will be less, because their life expectancy is limited and there's not much claim for lost income. And yet the cost of preparing those cases may be higher if the illness has lasted for many years.

Allen: Of course that's a shame, because they're the people who often need the money the most. But to be honest, we usually reject those cases—regardless of negligence—because the payoff is too small. For example, we just turned down a case involving an elderly woman with breast cancer. It was a good failure-to-diagnose case. But she was in her 80s, and had so many other medical problems that the case would have been very complicated—and very expensive—to pursue. And her life expectancy would have limited the potential damages.

Why it pays to keep the case simple

QWhat about the complexity of a case: Do you consider the amount of time and resources it's going to require in deciding whether to take it?

Burkin: We don't turn down cases because they're complex. But that does go into our equation, because those cases are going to be more difficult to prove, and they'll cost more for records, experts, and depositions. So when we evaluate them, the potential damages would have to be huge to make them worthwhile.

QHow much is huge? And how does that compare with a typical settlement?

Allen: I'd say $200,000 to $300,000 is typical; $500,000 to $1 million is very good; over $1 million is worth bragging about. Most of our cases settle for less than $1 million, though, because that's the limit of most malpractice policies.

QI've heard that some plaintiffs' lawyers use the shotgun approach: suing every doctor involved in the case, no matter who's really to blame, hoping some will cave in and settle. One lawyer told me, "You shake the tree and see what falls out."

Burkin: Some lawyers do use that method. But our approach is to sue as few doctors as possible.

QWhy? For economy's sake?

Burkin: No, because we like to keep our cases simple. It's much easier to convince the jury when you have only one or two defendants.

Allen: We don't want doctors on trial who don't belong there because it makes our case more difficult, particularly if each one has his own attorney. Let's face it: I'd much rather go up against one lawyer than four. Why have to deal with four different defense strategies? Why let your client face four cross-examinations?

It also affects our credibility with the jury. Most jurors don't want to find doctors negligent, because every one of them depends on his or her own doctor. So it's hard to convince them that one doctor was negligent, and even more difficult to convince them that two or three screwed up. If we don't convince them about one of the doctors, our credibility is damaged, which weakens our case against the others.

Burkin: Let me give you an example of a breast cancer case that involved several doctors. When we evaluated the records we really couldn't decide who was culpable. This patient's regular internist was out of town when she showed up for her appointment, so she saw a partner, who found a palpable lump. The partner recommended a mammogram, and a follow-up exam one-month later with her regular internist, who we think let the ball drop.

From looking at the medical records, we couldn't decide whether to sue the internist or the partner, so we sued them both at first. But after taking their depositions, we felt that the partner had done everything he should have done. So we dropped him from the suit, but we kept the internist.

Settling a case vs telling it to the judge

QHow do you decide whether to settle a case or go to trial?

Burkin: Very few of our cases actually go to trial. That's not because we're looking for quick settlements, but because we take only good cases, and we prepare every one as though it's going to trial. That way, if we do end up in court, we'll be 100 percent ready. The insurance companies know that, so they're more likely to settle. But they don't settle the frivolous cases. They settle the ones where there's clear liability, because they're worried about getting hit with big verdicts in court.

QYou say you settle most of your cases. Does that mean you prefer to avoid trial?

Burkin: No, we love to try cases, because it's very exciting. After all, we are trial lawyers. But we don't gamble with our clients. If you go to trial, you risk getting nothing. So if you can get a fair settlement and avoid that risk, you have to do it. Sometimes we do struggle with the decision if the insurance carrier offers a borderline settlement when we think there's a good chance of winning more at trial. At that point, we really have to put our egos aside and ask what's best for our client.

Allen: Two years ago, we had a breast cancer case in which the woman died before it came to trial. I don't think I've ever had a case I wanted to try more. But before she died, she told us she wanted to make sure her children would be taken care of, and have enough money for college. That was very important to her. So we settled the case, but I was miserable because I was sure we would have gotten much more if we'd gone to trial.

Why some doctors are more likely to get sued

QEvery doctor makes an occasional mistake. But most of those mistakes don't turn into malpractice suits. Why do some doctors get sued more than others?

Burkin: I'd say the most important factor in many of our cases—besides the negligence itself—is the quality of the doctor-patient relationship. People just don't sue doctors they like. In all the years I've been in this business, I've never had a potential client walk in and say, "I really like this doctor, and I feel terrible about doing it, but I want to sue him." We've had people come in saying they want to sue some specialist, and we'll say, "We don't think that doctor was negligent. We think it's your primary care doctor who was at fault." And the client will say, "I don't care what she did. I love her, and I'm not suing her."

We had one client who desperately wanted to sue her internist. She'd been going to this doctor for five years, and she'd had mammograms every year. One time there was some question on the mammogram, so the internist referred the patient to a surgeon who evaluated her and ordered a follow-up mammogram. The radiologist read that one as "negative," but our experts said it actually showed a suspicious lesion requiring further follow-up. As a result, the cancer wasn't caught until a year later, by which time it had metastasized.

Now even though the radiologist was clearly at fault, the patient blamed her internist for the delayed diagnosis. In our first meeting, she told me she hated this doctor because she never took the time to talk to her, and never asked about her other symptoms. "She never looked at me as a whole person," the patient told us.

Allen: We were involved in another case in which the client insisted on suing her newborn's pediatrician when the baby ended up with severe brain damage due to a herpes infection. The pediatrician had come to the hospital for a well-baby checkup after the delivery. Apparently, he didn't notice a herpes sore on the mother's lip—a sign that the baby might be at risk for herpes. But since he'd only seen the mother for about 20 minutes on that one visit, we didn't think he should be a defendant.

The obvious defendant was the woman's ob/gyn, who had seen her several times throughout her pregnancy, not to mention during the delivery. If he had noticed the herpes sore, he should have checked the mother for genital herpes. Had he done so, he would have known to do a cesarean to prevent the baby from picking up the infection. The client refused to sue him, however, because she'd had a long and close relationship with him and really liked him. But she had no relationship with the pediatrician, so she decided to sue him.

QIt sounds like the decision to sue is based as much on perceived negligence as actual negligence.

Burkin: Exactly. You see, all of our clients have had bad medical results. The big question is: Was it just an unfortunate result, or was it malpractice? When a patient has a bad medical result, the doctor has to take the time to explain what happened, and to answer the patient's questions—to treat him like a human being. The doctors who don't are the ones who get sued.

Allen: A lot of people come to us because they want us to review their medical records and figure out why something went wrong. They'll say, "I asked the doctor, but he didn't explain anything." Now the explanation may not be simple, but you can't just ignore your patient's question, because sooner or later the truth will come out. Even if the patient doesn't get the whole story herself, we will when we review the records.

Why arrogant doctors are the ones who lose

Allen: In one case, we found a letter the doctor had written in response to the patient's questions. He told her he couldn't tell her why her problems had occurred, and suggested she talk to someone else. Now that's sheer arrogance. He might as well have given her directions to the nearest plaintiffs' attorney.

QDoes arrogance continue to be a factor during the malpractice suit?

Allen: Absolutely. One of the things we try to find out in a deposition is what effect the doctor is likely to have on the jury. That helps us decide whether to settle or try a case. If he's arrogant, the jury will hate him. That affects not only the amount we'll seek in a settlement, but also how we'll try the case if it doesn't settle. In some cases, the doctor is such a piece of work that we'll call him as a witness even before we put our client on the stand. We hope he'll make the jury so angry that our case becomes relatively easy.

QYou keep saying "he" and "him" when you talk about arrogant doctors. Is that intentional?

Allen: Well, I don't want to be sexist, but I'm afraid most of our defendants—particularly the arrogant ones—are men. And the surgeons tend to be the most arrogant of all. We once tried a case against a surgeon who sat there, expressionless, throughout the trial. One day, after court had adjourned, I asked his defense attorney, "Where's the guy's wife? How come she's not up there sitting in the front row, making him seem more human?" The lawyer said, "This guy doesn't want anybody to see his judgment questioned, particularly his wife."

Now that was a very tough trial for us, because we didn't have a strong case. But after it became clear that the jury didn't like this guy, we ended up settling for a sizable sum. I still think we would have lost that case if the doctor had been more human.

Doctors' arrogance usually becomes apparent during the deposition. Many doctors resent being questioned or criticized, and they're angry at the legal system. But angry defendants make perfect targets for us, particularly when they're on the witness stand.

Burkin: Sometimes, when a doctor's arrogance has become obvious in his deposition, his lawyers will tell us that they plan to "humanize" him for the trial. And they'll really try, but it's not an easy thing to do.

Looking for the "incendiary device" that inflames the jury

Allen: There's an old adage among plaintiffs' lawyers: "Never forget that you're asking 12 people to take money from one person and give it to another." That's the bottom line. One method of doing this is to find the "incendiary device"—something that will get the jurors angry at the doctor. The angrier they get, the more money they're going to take from him.

The best way to get jurors angry is to catch the doctor in a lie. That's a mistake many doctors make, especially the arrogant ones. They just can't bring themselves to admit that they've screwed up, even when it's obvious. For example, we had one case where an orthopedist had no problem setting a little girl's broken arm. But when he was removing the cast, he nearly sliced her arm open with the machine and left a terrible scar.

Now the amazing thing about this case is that the doctor kept a detailed record, but never mentioned the accident. Did he really think no one was going to find out what happened? What would the jurors think when they found out? And we would certainly make damned sure they did. We settled that case easily, because the defense couldn't afford to let it go to a jury.

Burkin: The same thing happened with that doctor who operated on the wrong knee. In his post-op records, he said everything went fine. Nowhere in those records was there any indication that something went wrong. Do doctors really think the patient isn't going to realize what happened? Do they think jurors are that stupid? That's what gets jurors angry, and that's what produces big awards.

We have another case where an orthopedist put a hip prosthesis in the wrong position. As a result, the plaintiff had several dislocations, and eventually needed a hip revision. Now one of the best ways to show the position of the cup is to take "shoot-through" lateral X-rays, but this doctor never took them. In his deposition, when we asked him why, he said he couldn't do that in his office.

Three months later, when we were deposing his partner, I asked, "Doctor, can you do shoot-through lateral X-rays in your office?" And he said, "Of course. We've always had that capability." I was totally surprised by his answer. That was all we needed. The case will likely settle, partly because the defendant out-and-out lied.

QIf he hadn't lied, would you still have had a good case?

Allen: Yes, but the lie increases the value of the case. It means we're looking for more money. Every case is valued by what we expect a jury to give us. We base that not only on the facts of the case, but also on the doctor's attitude and behavior. That's why breast cancer cases result in such big verdicts: Juries get angry, because a little bit of care could have saved the woman's life.

We just settled a breast cancer case where the patient had a lump, and the surgeon did a needle biopsy and told her she was fine. In his deposition he admitted—and everybody in the profession knows—that a needle biopsy is diagnostic only when it's positive. This guy had even co-authored a chapter in a book about breast cancer that says you can't always depend on needle biopsies.

The patient had said she wanted the lump removed, but the doctor told her there was no reason to do that. A year later, the cancer had spread to every lymph node of her body, and she died after a lengthy fight. If the surgeon had removed the lump, as she'd requested, she'd still be alive. Now that's an incendiary device that will make a jury angry.

Burkin: I'll give you a personal story about how a doctor's attitude can get him in trouble. Several years ago, I brought my daughter to the hospital for a tonsillectomy. Of course, I know that's a routine procedure, but it does involve general anesthesia, so there's always a risk. When the anesthesiologist came by for a pre-op chat, he became huffy when I questioned him about the procedure. I was asking those questions as a concerned mother, not as a lawyer. But I could tell he didn't like being questioned by a layman. I don't think he knew I was a malpractice lawyer, but my questions may have made him suspicious.

After the operation, when I went to see my daughter in the recovery room, they told me there'd been a minor anesthesia problem. So I picked up the chart to see what had gone wrong. Someone had written in the chart in big, bold, red letters: MOTHER IS MALPRACTICE ATTORNEY.

Now that was dumb! If something really bad had happened, and there was a suit, that little remark in the chart would have had an inflammatory effect on a jury.

Allen: That note in the chart shows a typical attitude that doctors have about plaintiffs' lawyers: that we're always looking for ways to sue them. What they don't understand is that we don't take cases because we feel the defendants are bad doctors. The great majority are good doctors who've simply made a mistake. We take these cases not to punish them, but because we believe it's the best way to compensate the victims of those mistakes.

Expert advice on how not to get sued

In their interview with Medical Economics, top plaintiffs' attorneys Jeffrey Allen and Alice Burkin said that the best way for doctors to deal with malpractice suits "is to avoid getting sued in the first place."

Allen: Once you're sued, you've already "lost," no matter what the outcome. You're going to suffer emotional stress, major expense, and serious damage to your reputation. You're also going to lose income from the days or even weeks you'll spend away from your practice in depositions or in trial.

Burkin: The best way to avoid getting sued is to establish good relationships with your patients. The secret to creating those relationships is really very simple—it's not rocket science. You just have to treat your patients with respect. Take time to talk with them, and even more important, to listen.

When you send patients lab reports, add a personal note. Try to return their phone calls promptly. If you can't do it yourself within a reasonable time, have someone else call. If your waiting room is backed up, why not send someone out to say, "We're sorry you've had to wait so long," and explain why you're running late? And when patients finally get to see you, offer your own apology. If that doesn't happen, patients get the message that you don't care how long you've kept them waiting.

Creating a good doctor-patient relationship requires some interpersonal skills. Unfortunately, too many doctors just don't seem to have them. I realize not every doctor has a good bedside manner. But the staff can sometimes compensate. So if you're not good at talking to patients, hire people who are.

Allen: A couple of other general rules: Write your charts as though they'll be read by plaintiffs' lawyers, not just by other medical personnel. Be accurate, and be thorough, but don't put anything in the chart that you don't want read aloud before a jury.

Finally, if you are sued, forget what you think of the legal system. Check your arrogance at the door, and follow your lawyer's advice. Remember, no matter how much you know about medicine, you're not an expert on malpractice law. Your lawyer wouldn't try to take over for you in the operating room, so don't tell him how to handle your case. And don't assume you're brighter than us plaintiffs' lawyers. Remember: once you're sued, you're in our OR.

 

Carol Pincus, ed. Berkeley Rice. How plaintiffs' lawyers pick their targets. Medical Economics 2000;8:94.