Doctors are refusing to treat Lawyers and their families!

flighterdoc · Jun 16, 2004

samurai_lincoln said:
Flighterdoc, I have a beef or two with the issues you bring up regarding expert witnesses.

The "expertness" of such witnesses has indeed been addressed, in a series of controversial U.S. Supreme Court cases. See Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric v. Joiner, and Kumho Tire Co., Ltd. v. Carmichael and their progeny. Essentially, the test as to whether an expert's theories are admissible boils down to the following five part test:

1. Can the theory or technique be tested or has it been tested?
2. Has the theory or technique been subject to peer review and publication?
3. Is there a known or potential rate of error?
4. Is the technique maintained by standards and controls?
5. Has the theory been generally accepted?

The cases have substantially raised the bar for difficulty of admitting expert testimony, to the consternation of many plaintiffs' attorneys. I would think that someone who has previously worked as an expert would be aware of this situation. Speaking of which...

OK, now we can see where some of your anti-plaintiff rhetoric is coming from. Of course anyone with a dog in the hunt (or at least formerly in the hunt) is going to have some bias in addressing these issues. As for your point that plaintiffs never hired you as an expert... well, duh, you were working as a production test pilot for a manufacturer. Unless you were completely willing to become a pariah to your employer (not likely), no plaintiff would even think of approaching you to serve as an expert.

I was never asked after I ceased working for the manufacturer (they temporarily went out of business, was purchased by another manufacturer, and the production was moved to Florida). Also, I didn't have much involvement with the manufacturer, it was a part time job while I was on active duty in the AF.

But, my testimony (for ancillary manufacturers who were sued, like fuel pump, instrument and hose clamp manufacturers) invariably was the same, and at least aguably the truth - the airplane was safe, every airplane has idiocyncracies, the particular idiocyncracies were explained to the pilots and they ignored them.

But, I have a dog from another fight - I was sued by a patient I treated when I was a paramedic. Not for anything I did wrong, but for things that weren't possible to do. It was a wilderness river rescue, and I was sued along with everyone else involved including the doctors, hospital, school district (the patient was 16 and ditched school that day), the highway patrol, the agency I worked for, and dozens of others. Fortunately I had documented everything I did as I did it (a very, very good rule to follow) and I could show the pt was already seriously injured before I got to him.

Imagine that - I go and risk my life, and get sued for it. It worked out well in the end (it was part of my motivation for joining the Air Force), but it also meant that I couldn't get a job as a paramedic anywhere else - I had a pending lawsuit against me for years and years. I couldn't get my own malpractice insurance, and at the time med school applications specifically asked if you had ever been accused of anything like malpractice.

So, no, I don't think much of the plaintiffs bar. And working for attorneys didn't help. I had a brother in law (a trial attorney, and really a nice guy) that he never took a case that he didn't think had a good basis in law, and I believe him. However, there are lots of attorneys who lack his character, and there are too many gray areas that let scum slide.

g3pro · Jun 16, 2004

The idea of making court cases more "costly" to lawyers to make it not worth pursuing the case as they have done in the past is essential to getting liability insurance problems out of the way. If a lawyer needs to hire several "expert" witnesses to help him grandstand a trial to punish an "innocent" lawyer, and he can't afford those experts now, then good riddance! Gross malpractice cases are easily won without a cadre of expert witnesses. The problem for lawyers is when they need to pull out all the stops to do everything possible to punish physicians who "don't do everything they need to do" or whatever.

Oh, and STFU, Judd.

samurai_lincoln · Jun 16, 2004

g3pro said:
The idea of making court cases more "costly" to lawyers to make it not worth pursuing the case as they have done in the past is essential to getting liability insurance problems out of the way. If a lawyer needs to hire several "expert" witnesses to help him grandstand a trial to punish an "innocent" lawyer, and he can't afford those experts now, then good riddance! Gross malpractice cases are easily won without a cadre of expert witnesses. The problem for lawyers is when they need to pull out all the stops to do everything possible to punish physicians who "don't do everything they need to do" or whatever.

Oh, and STFU, Judd.

I'm sure you know this through all your vast years of experience as a trial attorney 🙄 You conveniently overlook the fact that most defendants have a huge bankroll of resources, and are paying their white shoe law firms by the hour, who are in turn enticed to rack up fees and drown the plaintiff in paperwork. You think a huge HMO or hospital will think twice about trotting out an army of expert witnesses? How do you expect the plaintiff to counter this evidence... by putting em's mother on the stand?

beambright · Jun 16, 2004

Doctors have the right to refuse to treat anybody they want to refuse to
treat....just like a lawyer doesn't have to take on cases they don't want to
take....the lawyers are like a bunch of vultures and deserve to see that
their frivilous lawsuits have not only made doctors wary of taking them as
patients but has caused many good doctors to retire early....there is going
to be a huge shortage of doctors in the next few years....especially general
surgeons....they train for 5 years post med-school but get poorly paid but
have huge liability.....when someone needs their gallbladder or gunshot wound
fixed, there will be a shortage of available surgeons....it is already happening.
So....in answer, I don't think a lawyer would be denied emergency treatment
but for elective procedures, they can be turned down by any private physician for any reason.

juddson · Jun 16, 2004

flighterdoc said:
So, a lawyer looses a few hours of billables on a BS case. They also have the potential to make millions for the same few hours. And more than a few "contingency" agreements (at least in California) are expenses plus contingency - there are cases where after winning a suit, the plaintiffs not only don't get ANY money, they owe their lawyers more.

The physician on the other hand looses not only his income opportunity, he has the other economic and non-economic losses I addressed.

Perhaps you have not been reading the posts above. It takes about $100,000 in out of pocket expenses to brings a suit to trial. It also takes thousands of hours. It is true that filing a suit is inexpensive (perhaps less than $100 in many jurisdictions), but you cannot get past summary judgement unless you get an expert. And this costs THOUSANDS - every penny of which comes right out of the lawyer's pocket and is put at risk of loss. You don't normally get to settlement talks (perhaps a settlement will be reached) until after expert affidavits and discovery. That's thousands and thousands of dollars down the road. The lawyer pays for ALL of this out of his own pocket and cannot expect to see any of it again unless his client recovers. This is all set forth above.

Your assertion that after a case a plaintiff might owe his attorney money is ridiculous. Expenses come out first. IF (possible, I suppose) the recovery does not exceed the actual expenses, the lawyer is entitled only to that amount of the recovery that can cover expenses. Surely you are not advocating that lawyers should be obliged to lose money to bring a case. If he spends $75,000 to bring a case, and the recovery is $60,000, explain to me how the lawyer wins. Seems to me that nobody wins.

judd

flighterdoc · Jun 16, 2004

juddson said:
Perhaps you have not been reading the posts above. It takes about $100,000 in out of pocket expenses to brings a suit to trial. It also takes thousands of hours. It is true that filing a suit is inexpensive (perhaps less than $100 in many jurisdictions), but you cannot get past summary judgement unless you get an expert. And this costs THOUSANDS - every penny of which comes right out of the lawyer's pocket and is put at risk of loss. You don't normally get to settlement talks (perhaps a settlement will be reached) until after expert affidavits and discovery. That's thousands and thousands of dollars down the road. The lawyer pays for ALL of this out of his own pocket and cannot expect to see any of it again unless his client recovers. This is all set forth above.

Your assertion that after a case a plaintiff might owe his attorney money is ridiculous. Expenses come out first. IF (possible, I suppose) the recovery does not exceed the actual expenses, the lawyer is entitled only to that amount of the recovery that can cover expenses. Surely you are not advocating that lawyers should be obliged to lose money to bring a case. If he spends $75,000 to bring a case, and the recovery is $60,000, explain to me how the lawyer wins. Seems to me that nobody wins.

judd

Well, the lawyer would get his expenses (60K), the doctor or his insurance company would loose the 60K, the doctor is out 60K plus the total cost of trying the case including HIS lawyers fees, lost work, etc, the plaintiff gets nothing, and the plaintiffs atty gets 4/5'ths of what he wanted - which was no doubt padded to the hilt. I worked at Latham & Watkins when the "born to bill" scandal happened concerning one of their offices. So, it seems that the lawyer does make out. Just not as much as he might have wanted, but far, far better than everyone else.

samurai_lincoln · Jun 16, 2004

flighterdoc said:
Well, the lawyer would get his expenses (60K), the doctor or his insurance company would loose the 60K, the doctor is out 60K plus the total cost of trying the case including HIS lawyers fees, lost work, etc, the plaintiff gets nothing, and the plaintiffs atty gets 4/5'ths of what he wanted - which was no doubt padded to the hilt. I worked at Latham & Watkins when the "born to bill" scandal happened concerning one of their offices. So, it seems that the lawyer does make out. Just not as much as he might have wanted, but far, far better than everyone else.

Ummm, he just stated in the hypo that the lawyer's out of pocket expenses (actual) were $75k... so the lawyer doesn't even cover his expenses if the recovery is $60k. Using my high powered supercomputer to perform this complex calculation, the plaintiff's attorney still loses $15k in said scenario. Please explain to us how the plaintiff's attorney "makes out" here.

And I hate to be a complete grammar timmy, but this is just freain' killing me since you've done it at least three times. If you spell "lose" as "loose" again, I am going to bust loose and lose it!! 😉

g3pro · Jun 16, 2004

samurai_lincoln said:
I'm sure you know this through all your vast years of experience as a trial attorney 🙄 You conveniently overlook the fact that most defendants have a huge bankroll of resources, and are paying their white shoe law firms by the hour, who are in turn enticed to rack up fees and drown the plaintiff in paperwork. You think a huge HMO or hospital will think twice about trotting out an army of expert witnesses? How do you expect the plaintiff to counter this evidence... by putting em's mother on the stand?

I'm sure you know this through all your vast years of experience as a trial attorney. 🙄 You forget that most defendents are privately practicing physicians with a tiny bankroll of resources. Gross negligence is difficult to prove by physician testimony and documentation? 🙄

It's like what Clinton used to say: "It is easy to convict an innocent man if you have the right number of witnesses, but it is far easier to set a guilty man free using false logic and predictable liberal ignorance."

:laugh:

NonTradMed · Jun 16, 2004

Hm, you know, I think it's interesting that as soon as we bring up socialist medicine, people are up in arms about physicians losing income blah blah, but in this thread, lawyers are the greedy money grubbers out to get those noble doctors. :laugh:

Hey, lawyers will say the current system of litigation, while imperfect, is still necessary for a civil society of law, just as physicians will say that the current medical system, while imperfect, is still necessary for our current society. But in the end, all argument is just on the bottom line. The only difference is, people are hypocrites when they protray certain people of one profession as 'more noble' than another. One person can be more noble than another person, but I have yet to see any proof that a degree determines a person's morale.....but perhaps it's just where i went to school. 🙂

I won't comment on how best to fix our tort system, but I will make the comment that anything people say about 'greedy' lawyers, can be said of 'greedy doctors'.

People choose a profession for a variety of reasons. If a doctor refused treatment for a lawyer and his family b/c of his degree, maybe a CPA can refuse to accept a physician as a client b/c they had a lousy experience with doctors. Refusing treatment based on a profession is about as dumb and ineffective as refusing treatment on race. True, you can't change your race, but we all know the reason we don't assume that all blacks are criminals is that most aren't. So, since MOST lawyers dont' even try medical malpractice, and half of all lawyers are transactional lawyers that dont' even see the inside of a courtroom....you're pretty much refusing treatment on a very flimsy reason.

juddson · Jun 16, 2004

g3pro said:
The idea of making court cases more "costly" to lawyers to make it not worth pursuing the case as they have done in the past is essential to getting liability insurance problems out of the way. If a lawyer needs to hire several "expert" witnesses to help him grandstand a trial to punish an "innocent" lawyer, and he can't afford those experts now, then good riddance! Gross malpractice cases are easily won without a cadre of expert witnesses. The problem for lawyers is when they need to pull out all the stops to do everything possible to punish physicians who "don't do everything they need to do" or whatever.

A plaintiff WILL NOT survive summary judgment without expert testimomy no matter how "easy" the case is. The doctor could be Mengelev himself - no expert, no jury trial. Your ignorance of the legal system is staggering. It's OK to be ignorant (for instance, I know nothing about medicine) - but then I don't go spouting off about the proper way to perform an apendectomy.

The STFU stuff is very mature. Perhaps this forum should be reserved only for doctors AND, of course, ONLY those doctors who agree with you. You are an immature .

Oh, and STFU, Judd.

brilliant!!! I'm sure you'll be an asset to the medical profession.

Judd

samurai_lincoln · Jun 16, 2004

g3pro said:
I'm sure you know this through all your vast years of experience as a trial attorney. 🙄 You forget that most defendents are privately practicing physicians with a tiny bankroll of resources. Gross negligence is difficult to prove by physician testimony and documentation? 🙄

It's like what Clinton used to say: "It is easy to convict an innocent man if you have the right number of witnesses, but it is far easier to set a guilty man free using false logic and predictable liberal ignorance."

Wrong... all physicians must carry malpractice insurance, so the real defendant is the insurance company. And while I don't touch med mal, I have three years of background in corporate/securities and another year (and counting) in litigation. I think I have a bit more standing to opine on what goes on a courtroom, clown.

I have no idea what the Clinton quote has to do with anything here... besides, why would he use the term "predictable liberal ignorance"??? 😕

juddson · Jun 16, 2004

flighterdoc said:
Well, the lawyer would get his expenses (60K), the doctor or his insurance company would loose the 60K, the doctor is out 60K plus the total cost of trying the case including HIS lawyers fees, lost work, etc, the plaintiff gets nothing, and the plaintiffs atty gets 4/5'ths of what he wanted - which was no doubt padded to the hilt. I worked at Latham & Watkins when the "born to bill" scandal happened concerning one of their offices. So, it seems that the lawyer does make out. Just not as much as he might have wanted, but far, far better than everyone else.

yes, as I said, nobody wins. A med mal case represents a "cost" on the system. Remember, however, that even when the recovery is small, there is still a recovery. This means that the plaintiff won (something). Why should that case not have been brought?

In any event, your math does no good. The lawyer who recovered only 60k of his 75k expenses has LOST 15k. The plaintiff suffered an uncompensated wrongful injury and the insurance company lost 60k to pay the award plus the costs to defend (insurance companies themselves pay for the doctors cost of defense as well as the award - a doctor may also hire his own attorney if he likes). There are no winners here. The lawyer did NOT get 4/5 of "what he wanted". He doesn't practice law to "break even" any more than doctors practice medicine to "break even". Neither would do what they do without being paid.

Judd

Judd

beambright · Jun 16, 2004

Some things just aren't fair are they? bump bump oops splat 😀 :laugh:

juddson · Jun 16, 2004

g3pro said:
I'm sure you know this through all your vast years of experience as a trial attorney. 🙄 You forget that most defendents are privately practicing physicians with a tiny bankroll of resources. Gross negligence is difficult to prove by physician testimony and documentation? 🙄

You aim to please, I see.

Doctors don't defend themselves. That is why they have insurance companies. These HUGE companies foot the bill for the cost of defense AND the award. The doctors own "out of pocket" expenses are minimal (unless he decides to hire his own attorney). Moreover, plaintiff's attorneys (the vast VAST majority of them) are NOT wealthy and cannot afford to hire nearly the number and breadth of experts that insurance companies can.

Judd

juddson · Jun 16, 2004

NonTradMed said:
Hm, you know, I think it's interesting that as soon as we bring up socialist medicine, people are up in arms about physicians losing income blah blah, but in this thread, lawyers are the greedy money grubbers out to get those noble doctors.

Hey, lawyers will say the current system of litigation, while imperfect, is still necessary for a civil society of law, just as physicians will say that the current medical system, while imperfect, is still necessary for our current society. But in the end, all argument is just on the bottom line. The only difference is, people are hypocrites when they protray certain people of one profession as 'more noble' than another. One person can be more noble than another person, but I have yet to see any proof that a degree determines a person's morale.....but perhaps it's just where i went to school. 🙂

I won't comment on how best to fix our tort system, but I will make the comment that anything people say about 'greedy' lawyers, can be said of 'greedy doctors'.

People choose a profession for a variety of reasons. If a doctor refused treatment for a lawyer and his family b/c of his degree, maybe a CPA can refuse to accept a physician as a client b/c they had a lousy experience with doctors. Refusing treatment based on a profession is about as dumb and ineffective as refusing treatment on race. True, you can't change your race, but we all know the reason we don't assume that all blacks are criminals is that most aren't. So, since MOST lawyers dont' even try medical malpractice, and half of all lawyers are transactional lawyers that dont' even see the inside of a courtroom....you're pretty much refusing treatment on a very flimsy reason.

I've said this many times in other threads. It falls on deaf ears. It is simply ignored. It is one of the reasons that doctors find little sympathy among the public.

Judd

beambright · Jun 16, 2004

My father is a surgeon and spent 2 weeks defending an attempt by a
unscrupulous attorney and money seeking patient to sue him because she
didn't like the way her scar healed. After two weeks trial, the whole
thing was dismissed. However, my dad missed two weeks of work, went
through a great deal of stress, and his insurance company had to defend
the stupid attempt to get money for this lady & her attorney. Thankfully
they both lost but so did my dad. It is a screwed up system....obviously
if someone has the wrong leg cut off there should be some compensation
but anyone can sue anyone for anything in our current legal setup....there
MUST be a basic review that there is some merit to the case. I hate
lawyers myself now and the whole thing put our entire family through a great
deal of stress unnecessarily. It was an attempt to win the lottery. Ridiculous! Docs left and right are retiring in our town due to the stress of
malpractice and the unfairness of insurance reimbursements. I seriously
think the problem will get solved soon though because there will be no docs
in some parts of the country soon and no docs in some specialties. The
lawyers are responsible....99% Selfish insurance companies l%

Indebt4Life · Jun 20, 2004

When we say "Lawyers are to blame" I don't think that we should point the finger at everyday malpractice lawyers. It's not to say that I don't think that they are scum...because I do. However, they are doing what they were trained to do..sue and make money for themselves. It is their livelihood. The lawyers that I have in mind that I really think should be blamed for all the healthcare crisises are the politicians. Most politicians are lawyers and lots of their campaigns are funded by lobbys composed of lawyers. So, they want to protect their own and screw the docs over.

Why is it that docs are "obligated" by law to provide service without compensation or before being compensated? Is there any other profession out there that allows this? I don't think so.

If the law requires the "docs" to do something, don't you think that the law could also very easily place some reforms to lessen the blow of frivolous suits. Yes, of course they can. But they don't because the politicians do not want to bite the hand that feeds them. All of the sudden some lawyers would find themselves without a job. If there was a way for doctors to unite and stop putting up with the BS; I believe that we could remedy the issues.

I was speaking to an EM doc and he told me that there is a cap placed for Emergency medicine in Florida at 150K and other specialties at 500K. Is this true ?

kinetic · Jun 20, 2004

samurai_lincoln said:
Wrong... all physicians must carry malpractice insurance, so the real defendant is the insurance company.

Is anyone else here blown away by this statement? The premise is so upside-down that I don't even know what to do with it.

Neuronix · Jun 20, 2004

samurai_lincoln said:
Wrong... all physicians must carry malpractice insurance, so the real defendant is the insurance company.

Ummm, no. Only some states (inclduing mine, PA) require a doctor to carry malpractice insurance. It's an increasing trend now for physicians to go without malpractice insurance, especially in high-risk specialties like OB/GYN. The name for it in medicine is "going bare". They pull all sorts of tricks, like renting all equipment, putting owned stuff in the spouse's name, and generally keeping no assets. This way, if they are sued, the negotions start at 0 and go up, as opposed to start at millions and go down.

See: http://www.ama-assn.org/amednews/2004/04/05/prl10405.htm for example.

kinetic · Jun 20, 2004

No, no ...I wasn't even concerned with the "all physicians must carry malpractice insurance" part (although I agree with you that it's not required). It's what comes AFTER that which is cracking me up.

And the scary (or informative) part is: that's coming from a lawyer.

kinetic · Jun 20, 2004

NonTradMed said:
Hm, you know, I think it's interesting that as soon as we bring up socialist medicine, people are up in arms about physicians losing income blah blah, but in this thread, lawyers are the greedy money grubbers out to get those noble doctors.

I'm not sure how to put this other than: you (and juddson by extension, since he agrees with you and "has been saying this for years) don't even understand the issue, do you? Socialist medicine does not refer to how much the DOCTOR makes; it refers to how SOCIETY AS A WHOLE funds health care. Now, undeniably, physicians will probably make less, but in other socialist health systems physicians are still quite well off. The problem is that HEALTH CARE DOLLARS are spread thinly to cover everyone, making services unavailable to people. In other words, physicians -- UNLIKE LAWYERS -- care ultimately about taking care of patients. Otherwise, we could care less how the system was structured, punch our time card, and scoot on home. LAWYERS don't care what the impact of ANYTHING is on society -- as long as they get theirs.

Like I said, lawyers blabber on and on about "making sure your rights are protected" and other high-falutin' issues. But note: they don't care if their client is right or wrong. AT ALL. With the exception of D.A.s and criminal prosecutors, their ONLY ALLEGIANCE (and they will tell you this) is to their client. (And, technically, since D.A.s have us as their clients, it's true of them, too; but at least they are looking out for society as a whole.) They only want "to get you the money that you deserve!" (And which they will promptly take a large percentage of.)

NICE! 👍

flighterdoc · Jun 20, 2004

Indebt4Life said:
When we say "Lawyers are to blame" I don't think that we should point the finger at everyday malpractice lawyers. It's not to say that I don't think that they are scum...because I do. However, they are doing what they were trained to do..sue and make money for themselves. It is their livelihood.

And drug dealers livelihood is dealing drugs. Does that make it right?

The lawyers that I have in mind that I really think should be blamed for all the healthcare crisises are the politicians. Most politicians are lawyers and lots of their campaigns are funded by lobbys composed of lawyers. So, they want to protect their own and screw the docs over.

Exactly!

Why is it that docs are "obligated" by law to provide service without compensation or before being compensated? Is there any other profession out there that allows this? I don't think so.

If the law requires the "docs" to do something, don't you think that the law could also very easily place some reforms to lessen the blow of frivolous suits. Yes, of course they can. But they don't because the politicians do not want to bite the hand that feeds them. All of the sudden some lawyers would find themselves without a job. If there was a way for doctors to unite and stop putting up with the BS; I believe that we could remedy the issues.

I was speaking to an EM doc and he told me that there is a cap placed for Emergency medicine in Florida at 150K and other specialties at 500K. Is this true ?

How about the people deciding that any lawyer has to provide excellent legal service (defined as winning the case) for free, for anyone who crawls across the doorway - and with no guarantee of getting paid, even for a sucessful outcome?

Thats what the lawyers (via the politicians) have decided doctors have to do.

samurai_lincoln · Jun 20, 2004

Neuronix said:
Ummm, no. Only some states (inclduing mine, PA) require a doctor to carry malpractice insurance. It's an increasing trend now for physicians to go without malpractice insurance, especially in high-risk specialties like OB/GYN. The name for it in medicine is "going bare". They pull all sorts of tricks, like renting all equipment, putting owned stuff in the spouse's name, and generally keeping no assets. This way, if they are sued, the negotions start at 0 and go up, as opposed to start at millions and go down.

See: http://www.ama-assn.org/amednews/2004/04/05/prl10405.htm for example.

OK, I apologize and stand corrected. I amend my statement, which I knew I should have researched to start with, but was too lazy... in the state where I currently practice, the one with which I am most familiar, all doctors must carry malpractice insurance. Still, despite this growing trend, the vast majority of doctors carry insurance, and in these cases the insurance company is the true defendant in the law suit. They essentially take over representation in the case, including providing the defense attorney.

As for these "tricks", ironically these are things that an attorney would often be assisting in during partnership (professional association, whatever) formation. The only thing I would caution against is that anyone who strips almost all assets out of their company can have the "corporate veil" pierced, and personal assets will then be used to satisfy the judgment. But obviously some judicious asset planning is a wise move.

samurai_lincoln · Jun 20, 2004

kinetic said:
LAWYERS don't care what the impact of ANYTHING is on society -- as long as they get theirs.

Like I said, lawyers blabber on and on about "making sure your rights are protected" and other high-falutin' issues. But note: they don't care if their client is right or wrong. AT ALL. With the exception of D.A.s and criminal prosecutors, their ONLY ALLEGIANCE (and they will tell you this) is to their client. (And, technically, since D.A.s have us as their clients, it's true of them, too; but at least they are looking out for society as a whole.) They only want "to get you the money that you deserve!" (And which they will promptly take a large percentage of.)

NICE! 👍

Of course lawyers have complete allegiance to their clients. This is the premise behind the American legal system. It is required by state professional responsibility codes, and any lawyer who fails to live up to their obligation of zealous (within reason) representation runs a serious risk of facing a malpractice suit. Yes, attorneys face these considerations as well, particularly with unhappy clients in personal injury or estate planning situations.

Lawyers, like doctors, do have some choice in which cases they take. But once they take the case, there is no place for judging whether your client is truly in the right. You must provide representation to the best of your abilities either way. And initial screening of cases is an imprecise science, since your clients often fail to tell you the whole story.

From the sounds of it, you have a beef with the legal system in general. Which is fine, but don't shoot the messenger in the process. Individual attorneys are just following the rules of the road and attempting to make a living within this construct, just as their physician counterparts are.

kinetic · Jun 20, 2004

samurai_lincoln said:
Of course lawyers have complete allegiance to their clients. This is the premise behind the American legal system.

Lawyers SHOULD have allegiance to the truth. The fact that this matters little to nothing to them is disturbing at best. Their job is to represent their client; their duty is to uphold what is right and just. Unfortunately, the latter has fallen by the wayside.

flighterdoc · Jun 20, 2004

kinetic said:
Lawyers SHOULD have allegiance to the truth. The fact that this matters little to nothing to them is disturbing at best. Their job is to represent their client; their duty is to uphold what is right and just. Unfortunately, the latter has fallen by the wayside.

The major problem with the legal industry is that there is damned little justice in it. Just laws.

juddson · Jun 20, 2004

kinetic said:
Lawyers SHOULD have allegiance to the truth. The fact that this matters little to nothing to them is disturbing at best. Their job is to represent their client; their duty is to uphold what is right and just. Unfortunately, the latter has fallen by the wayside.

Believe me, this is not something that is lost on attorneys. But there is also a recognition that nobody can actually know the "truth". It's an imperfect concept at best, and therefore a conscious decision was made early on in American (and British) jurisprudence that the BEST way to arrive at the "truth" (whatever the hell that is) is through a rigorous adversarial process. And THIS process only works when the attorney's allegance is to his client, and nobody else. If we had a magic crystal ball that could "see" the truth, we wouldn't need this sort of system. But we don't.

This is not to say that there are no safegaurds in this process - there are. For instance, an attorney cannot present the testimony of a witness who he believes (or has reason to believe) is not telling the truth. Likewise, prosecuting attorneys have a legal (and ethical) obligation to present exculpatory evidence to the defendant no matter how much he thinks the guy did it.

Anyway. . . .

continue

judd

gary5 · Jun 21, 2004

Most lawyers are scum. Physicians shouldn't feel obligated to treat a malpractice lawyer who spends his/her time attacking physicians in court. Don't worry, they can always find someone else to treat them. They can also not mention what they do, or they could lie and say they help people for a living.

kinetic · Jun 21, 2004

juddson said:
But there is also a recognition that nobody can actually know the "truth".

True, in many cases. The problem with this rationalization is we have lawyers who act like the mob -- the legal system is all based on technicalities and loopholes and that's what passes for "justice" these days, thanks to lawyers. "Don't tell me whether you did it or not ...I don't want to know because then I might actually have a problem! (Well, not with my conscience ...)" So, TECHNICALLY they can argue, "uh, to the best of my knowledge, my client is innocent 😀 ," even though the REALITY is they know better. Or worse, with malpractice lawyers, they go IN knowing their suit is frivolous, but "what the hell, it's a good enough sob story that I may be able to get the jury to throw some cash at me!"

juddson said:
It's an imperfect concept at best, and therefore a conscious decision was made early on in American (and British) jurisprudence that the BEST way to arrive at the "truth" (whatever the hell that is) is through a rigorous adversarial process. And THIS process only works when the attorney's allegance is to his client, and nobody else.

Wrongo! The "rigorous adversarial process" only serves to show who can PERSUADE people better -- in other words, at best it generally proves only who is a better "lawyer," not who was "right or wrong." Moreover, since you have to fight about what is permissible to present as evidence, it's even more hypocrisy by lawyers. "Well, I know this and you know this, but we can't talk about it! Yippee!"

kinetic · Jun 21, 2004

gary5 said:
Most lawyers are scum. Physicians shouldn't feel obligated to treat a malpractice lawyer who spends his/her time attacking physicians in court. Don't worry, they can always find someone else to treat them. They can also not mention what they do, or they could lie and say they help people for a living.

Lawyers lie? As Ralph said, "that's unpossible!"

ken37 · Jun 21, 2004

kinetic said:
True, in many cases. The problem with this rationalization is we have lawyers who act like the mob -- the legal system is all based on technicalities and loopholes and that's what passes for "justice" these days, thanks to lawyers. "Don't tell me whether you did it or not ...I don't want to know because then I might actually have a problem! (Well, not with my conscience ...)" So, TECHNICALLY they can argue, "uh, to the best of my knowledge, my client is innocent 😀 ," even though the REALITY is they know better. Or worse, with malpractice lawyers, they go IN knowing their suit is frivolous, but "what the hell, it's a good enough sob story that I may be able to get the jury to throw some cash at me!"

Wrongo! The "rigorous adversarial process" only serves to show who can PERSUADE people better -- in other words, at best it generally proves only who is a better "lawyer," not who was "right or wrong." Moreover, since you have to fight about what is permissible to present as evidence, it's even more hypocrisy by lawyers. "Well, I know this and you know this, but we can't talk about it! Yippee!"

Do you actually know anything about lawyers or the law, or do you get this all from watching TV and 3rd hand knowledge?

kinetic · Jun 21, 2004

ken37 said:
Do you actually know anything about lawyers or the law, or do you get this all from watching TV and 3rd hand knowledge?

Well, I mug people on the streets, beat old ladies, and pistol-whip little kids for loose change ...so, yeah, I know about lawyers.

juddson · Jun 21, 2004

ken37 said:
Do you actually know anything about lawyers or the law, or do you get this all from watching TV and 3rd hand knowledge?

I know, I know. His arguments are so illconceived and without nuance. They lack any sort of real insight. Holding an opinion like "all lawyers are money grubbing scum" is harldy more insightfull than insisting that Claudia Shiffer is the hottest woman on the planet. Sure she's nice looking - but show some ambition fer christ's sake.

Judd

flighterdoc · Jun 21, 2004

kinetic said:
Well, I mug people on the streets, beat old ladies, and pistol-whip little kids for loose change ...so, yeah, I know about lawyers.

So you ARE one! :laugh:

flighterdoc · Jun 21, 2004

Please join us in the Lounge for the new "Lawyer Jokes" thread!

Gleevec · Jun 21, 2004

ken37 said:
Do you actually know anything about lawyers or the law, or do you get this all from watching TV and 3rd hand knowledge?

Do malpractice lawyers and their jackpot juries actually know anything about doctors or medicine, or do they get this all from watching TV and 3rd hand knowledge?

Doesnt seem to stop lawyers from making medical arguments and collecting big bucks, so it seems as if kinetic is OK on that account (especially since he isn't even getting paid to post this stuff, though some of his posts might be worth a pay-per-view).

ms2209 · Jun 21, 2004

Gleevec said:
Doesnt seem to stop lawyers from making medical arguments and collecting big bucks

Or the MBAs who are heading up insurance companies, for that matter!

Catalyst · Jun 21, 2004

An interesting NYTimes editorial today on medical malpractice that argues from a patient's perspective... http://www.nytimes.com/2004/06/21/opinion/21HERB.html

jpro · Jun 21, 2004

juddson said:
the "truth" (whatever the hell that is)

I think that pretty much sums it up for me.

flighterdoc · Jun 21, 2004

Catalyst said:
An interesting NYTimes editorial today on medical malpractice that argues from a patient's perspective... http://www.nytimes.com/2004/06/21/opinion/21HERB.html

Nobody is saying that the injured shouldn't be taken care of - but what, exactly, is the right degree of "being taken care of"

Medicine is an art - not a science. People are all not the same.

What exactly was the problem with the woman who had a tubal ligation? That an AA wasn't seen? Even with tens of thousands of dollars of imaging, you can't always see everything, and mistakes happen. The AA was hit, the gynecologist called in a surgeon to fix it, and she's alive now. Who, exactly is responsible? Should we have angiography of all major vessels before every procedure? Crap like this is why costs go out of control - CYA tests that are useful in 1/10000 cases.

The woman who had both breasts removed is a tragedy,and the alleged response is insensitive. How much is having your feelings hurt, vs a bad path read, worth?

juddson · Jun 21, 2004

Gleevec said:
(especially since he isn't even getting paid to post this stuff, though some of his posts might be worth a pay-per-view).

Judd

juddson · Jun 21, 2004

flighterdoc said:
Medicine is an art - not a science. People are all not the same.

This is the smartest thing you have said. So why, then, should everybody be restricted to $250,000 for pain and suffering no matter HOW MUCH pain and suffering they experience? Everybody is different - every injury is distinct. And yet, despite your moment of epiphany, you support a "one size fits all" solution.

Judd

gary5 · Jun 21, 2004

kinetic said:
Lawyers SHOULD have allegiance to the truth. The fact that this matters little to nothing to them is disturbing at best. Their job is to represent their client; their duty is to uphold what is right and just. Unfortunately, the latter has fallen by the wayside.

What planet do you live on? Remove the word "should" from your vocabulary. People don't do what you think they "should". They do what they do. Let's take criminal defense lawyers, for example. As long as they get their $500/hour, they'll free as many murderers as possible.

on_the_fence · Jun 21, 2004

Spitting Camel said:
What do you guys think of this? Why don't we have patients sign waviers like doctors in Texas stating that by getting treated by us, you agree to waive your right to legal action in the case of accidental personal injury or death? Leave a clause stating that negligence warrants legal action or whatever.

I was thinking this exact same thing just this morning! I am interested in OB/GYN, but the malpractice suits are terrible!! People are too sue happy.

flighterdoc · Jun 21, 2004

on_the_fence said:
I was thinking this exact same thing just this morning! I am interested in OB/GYN, but the malpractice suits are terrible!! People are too sue happy.

It doesnt hold up, legally. The lawyers have it all figured out. They charge the doctors for drawing up the waiver, then they represent the people suing, even though they signed the waiver, because the patient is too fing stupid to understand what they signed. Or, because the doctor didn't stress that there is a 1/1-million chance that freezing a wart off might result in hiccups. Or nothing at all.

samurai_lincoln · Jun 21, 2004

flighterdoc said:
It doesnt hold up, legally. The lawyers have it all figured out. They charge the doctors for drawing up the waiver, then they represent the people suing, even though they signed the waiver, because the patient is too fing stupid to understand what they signed. Or, because the doctor didn't stress that there is a 1/1-million chance that freezing a wart off might result in hiccups. Or nothing at all.

C'mon, think about this from a bit broader perspective and consider the policy implications. The reason why such waivers are rarely upheld is the huge disparity in bargaining power between the two parties. Particularly in the case of medical care, which is for all practical purposes a necessity, even in non-emergency cases. If the doctor refuses to provide treatment unless a patient waives his rights, then of course the patient will relent and sign away. Add this coercion to the doctor's already vastly superior knowledge of healthcare, and it is clear that the patient has little bargaining power. And that is the essence of contract law: that the contract was formed between two parties of relatively equal sophistication and bargaining power, free from any undue influence, fraud, etc.

To anticipate the counterargument... yes, the patient has the option of seeing another doctor. But this may not always be true, as in the case of specialists, rural areas, etc. And services are usually considered "unique" items, i.e. the service provided by Doctor X is considered different from that provided by Doc Y, even if performing the same procedure.

Addressing another point of yours, it isn't as if the same lawyers representing doctors in drafting contracts and the like are then turning around and suing doctors for malpractice. Two totally separate groups. But of course you are too busy stereotyping all lawyers to see this distinction. 🙄 Evidently I am the only one who doesn't have it "figured out", since I have yet to see this money rolling in hand over fist you seem to think is par for the course in the practice of law.

flighterdoc · Jun 21, 2004

samurai_lincoln said:
C'mon, think about this from a bit broader perspective and consider the policy implications. The reason why such waivers are rarely upheld is the huge disparity in bargaining power between the two parties. Particularly in the case of medical care, which is for all practical purposes a necessity, even in non-emergency cases. If the doctor refuses to provide treatment unless a patient waives his rights, then of course the patient will relent and sign away. Add this coercion to the doctor's already vastly superior knowledge of healthcare, and it is clear that the patient has little bargaining power. And that is the essence of contract law: that the contract was formed between two parties of relatively equal sophistication and bargaining power, free from any undue influence, fraud, etc.

To anticipate the counterargument... yes, the patient has the option of seeing another doctor. But this may not always be true, as in the case of specialists, rural areas, etc. And services are usually considered "unique" items, i.e. the service provided by Doctor X is considered different from that provided by Doc Y, even if performing the same procedure.

Addressing another point of yours, it isn't as if the same lawyers representing doctors in drafting contracts and the like are then turning around and suing doctors for malpractice. Two totally separate groups. But of course you are too busy stereotyping all lawyers to see this distinction. 🙄 Evidently I am the only one who doesn't have it "figured out", since I have yet to see this money rolling in hand over fist you seem to think is par for the course in the practice of law.

So, the physician is supposed to have less rights than the patient? To be chattel?

BTW, I understand the varieties of lawyers - I just like lumping them all together into the slime bucket. 🙄

juddson · Jun 21, 2004

flighterdoc said:
So, the physician is supposed to have less rights than the patient? To be chattel?

What does this mean? A chattel is a piece of personal property. How does this relationship make a doctor a chattel?

The reasons that waivers don't work is because our laws do not permit a patient to consent to negligent care (or, to "assume the risk that somebody will be negligent). That, of course, is the ONLY effect a waiver of liability would have in practice because, after all, a poor outcome that is NOT the result of negligent care is not compensable anyway.

Think for a moment about what a meaningful waiver of this type must look like - in effect the contract would specify that the doctor need not exercise due care for the safety of his patient - which is patently absurd, as I'm sure you will agree. The other (softer) waiver might include language to the effect that the patient agrees not to sue the doctor for poor outcomes outside of his control. But the softer waiver is meaningless and ineffectual because culpable conduct on the part of the defendant is part of the plaintiff's prima facia case anyway.

The following example suffices to explain why: Some patients simply do not respond well to general anesthetic, and despite the fact that the MDA has complied with all applicable standards of care pre-operatively, performed the administration of anesthetic brilliantly and was compliant with all other requirements, there are a certain percentage of patients who will simply never get off the table due to the serendipity of their individual physiologies that no doctor could have previously discovered.

What effect will the sort of waiver you contemplate (no liability for "accidents" - not sure what that is supposed to mean) have on the doctor's liability? The answer is none. Why? Because the patient would still have to demonstrate a deviation from the standard of care in order to make a prima facia case. And in this case, no such demonstration is possible. Hence, there is no liability whether the waiver was in place or not.

On the other hand, suppose that the MDA administered pharma A when she should have administered pharma B. There's no question of "malice" or recklessness here. Just as "honest mistake" due to fatigue or a fight she had with her husband over breakfast, or whatever. No matter how you slice it, this is "negligence" - a palpable deviation from the standard of care, which required the administration of pharma B rather than pharma A. The ONLY sort of waiver that would protect a doctor from a suit arising out of this second situation is one that waived the doctor's obligation to exercise "due care" (ie., not be "negligent") in the administration of anesthetic. For reasons I hope you can see, courts are not prone to enforce this sort of agreement, and for good reason.

That is why waivers are worthless.

I know that most of this dodges the real issue for you - which I gather is that you think doctors should be able to make so-called "honest mistakes" without the threat of liability - and that liability should be premises only upon some level of culpability that rises above that which you call an "honest mistake". Even if we were to ignore the legal equivalence of "honest mistakes" with what we call "negligence", there is a sound philosphical basis to require doctors (everybody, really) to pay for "honest mistakes" when they happen. And it is the same reason we require people who run red lights to pay for the cost of thier "honest mistakes", which is that the "cost" of the injury is rightly borne by the most culpable party - in that case, the red light running motorist.

Doctoring is a risky business because it is fraught with opportunities to make errors. However, it is also a well compensated business, no doubt based in part on the risk a doctor assumes when he picks up a scalpel or offers to diagnose a condition.

Judd

gary5 · Jun 21, 2004

juddson said:
This is the smartest thing you have said. So why, then, should everybody be restricted to $250,000 for pain and suffering no matter HOW MUCH pain and suffering they experience? Everybody is different - every injury is distinct. And yet, despite your moment of epiphany, you support a "one size fits all" solution.

Judd

Doctors can't charge enough to pay for multimillion dollar lawsuits, thanks to HMOs, etc. If a patient wants to be able to sue for $1,000,000, then he needs to be willing to pay $1,000-$10,000 to see any doctor, not $100.

juddson · Jun 21, 2004

gary5 said:
Doctors can't charge enough to pay for multimillion dollar lawsuits, thanks to HMOs, etc. If a patient wants to be able to sue for $1,000,000, then he needs to be willing to pay $1,000-$10,000 to see any doctor, not $100.

This makes some intuitive sense, but the reality is different. For instance, even the very high cost of medical malpractice insurance (which corresponds - theoretically - to the cost of malpractice cases in the aggregate) permits the overwhelming majority of doctors who must pay high premiums to make in the 2's and better (those docs who make less than 2's normally are in low risk catagories anyway). There is plenty of anecdotal reports of neurosurgeons and OB/GYN's who take home less than $100,000 after premiums, but they are in the super-minority. Most OB's still clear $220k and most neurosurgeons clear above $300k even in this climate. And there are just as many anecdotal reports of doctors continuing to carry on a lucrative practice having been sued multiple times. How do they continue to make a living?

Judd

Doctors are refusing to treat Lawyers and their families!

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