Friday, October 08, 2004

Money or Justice ??????
From today's Wall Street Journal:As Malpractice Caps Spread, Lawyers Turn Away Some Cases
Two years ago Shelly Thompson-Mooney, a 35-year-old mother in Texas, died of a cerebral aneurysm. Attorney Roy Key thought her case was a good candidate for a medical-malpractice suit.

Her common-law husband, Robert Mooney, told the attorney she was brought to the emergency room with substantially the same symptoms she had suffered once before when a blood vessel ruptured in her head. Mr. Mooney said she went three hours without proper treatment. Just over two days later, she died, leaving Mr. Mooney to raise their 4-year-old daughter.

But Mr. Key and other attorneys passed on the case. Ms. Thompson-Mooney was a homemaker, so she had no income the suit could seek to recoup. Her medical bills were covered by insurance, eliminating another potential claim in a lawsuit. That meant a suit probably would need to seek payment for "pain and suffering" -- traditionally a rich vein. But Texas recently had capped awards for such noneconomic damages in the vast majority of medical-malpractice cases at $250,000.

"From an emotional standpoint, I wanted to take the case," Mr. Key says. But he says the cap prevented him from doing so. A case like this one might cost his firm $100,000 to prepare for trial. That is more than the firm had any hope of collecting, since its fee is one-third of any award. "If there was no cap in this state," says Mr. Key, "we would have taken it -- I can say that unequivocally."
First of all, as with many anecdotes about alleged malpractice, the devil is in the details and the claim of "substantially the same symptoms" leaves a great deal of wiggle room. The article goes on to describe a legitimate issue with damage caps:
Amid the fierce debate over limits on medical-malpractice suits, many states have enacted limits of their own that are having a sweeping impact. One of the most common types -- caps on damages for pain and suffering, or so-called noneconomic caps -- is turning out to have the unpublicized effect of creating two tiers of malpractice victims.

Cases involving high earners or big medical bills move ahead. Lawyers can still seek economic damages for the wages these patients lost or to pay for continuing medical bills. But lawyers are turning away cases involving victims that don't represent big economic losses -- most notably retired people, children and housewives such as Ms. Thompson-Mooney.
Now I'm not saying that caps are a bad thing, just that this is a point to consider if we wish to remain intellectually honest. Some more disparities are pointed out:
The effect of such caps became clear to Donald Costello, a lawyer in Santa Cruz, Calif., after he handled two virtually identical breast-cancer cases. Both involved married mothers in their 40s who had two children and died from the disease. One plaintiff was a housewife and her case was settled for $300,000. The other was a Silicon Valley executive whose family won a $2 million settlement....
One case in Pasadena decided last year involved a mother of two who held a master's degree and worked as a school administrator. She died of an infection following a gastric bypass, and her family won $1.6 million in economic damages.

In the other case, decided this year in San Bernardino County, an unmarried woman on welfare with two minor children died of an infection during a stillbirth after the doctor ignored the patient's symptoms until it was too late. In that case, $200,000 in economic damages was awarded.
The lawyers are feeling the pain in Texas as well:
Paula Sweeney, a Dallas trial lawyer who has been handling medical-malpractice cases for 23 years, says the caps have already slashed her business. Since the beginning of the year, she's filed only one case. In a normal year, she would have filed 12 to 15 by now. "The economic feasibility has changed," she says. She says she believes the new restrictions will eliminate about 85% of medical-malpractice cases in the state.
Trying a case typically involves hiring half a dozen expert witnesses and costs about $100,000, she says. Under the state's new pain-and-suffering cap, that essentially eliminates any case where the victim had no income or no continuing medical expenses. Lawyers use economists to try to quantify "mommying activities," such as chauffering and cooking, to argue for economic damages, but that can be difficult and often doesn't amount to much
There are ways of estimating such things, some serious, and some not so serious. It is probably not as difficult as it would seem. Caps on non-economic damages work for two reasons, one of course is the limit of the overall sum. The other is that economic damages are relatively easy to calculate, and the uncertainty of punitive/non-economic damages is eliminated.
So is it about "justice for the injured" or about what can be collected? Senator Edwards had the same sort of priorities as well:
Over time, Mr. Edwards became quite selective about cases. Liability had to be clear, his competitors and opponents say, and the potential award had to be large.

"He took only those cases that were catastrophic, that would really capture a jury's imagination," Mr. Wells, a defense lawyer, said. "He paints himself as a person who was serving the interests of the downtrodden, the widows and the little children. Actually, he was after the cases with the highest verdict potential. John would probably admit that on cross-examination."

The cerebral palsy cases fit that pattern. Mr. Edwards did accept the occasional case in which a baby died during delivery; The North Carolina Lawyers Weekly reported such cases as yielding settlements in the neighborhood of $500,000. But cases involving children who faced a lifetime of expensive care and emotional trauma could yield much more.

And finally:
For plaintiffs' attorneys, the primary question in cases involving babies and others without income is whether medical needs are continuing. That boosts a potential award because it wouldn't be limited by the cap on noneconomic damages. The question proved crucial for Brenda Stoltz, of Leesburg, Va. Ms. Stoltz says a botched delivery last year left her daughter, Zoe Elizabeth, severely brain damaged.

During delivery, there were signs that the baby was in distress, including an extremely slow heart rate over an extended period of time, according to Ms. Stoltz. Yet no emergency C-section was done. This lack of action and other errors, says Ms. Stoltz, left Zoe deprived of oxygen during a critical period. She was born with severe brain and other organ damage.

Last September, Ms. Stoltz and her husband decided to sue the doctor involved and they retained a Maryland law firm that specializes in medical malpractice. Zoe was facing a lifetime of expensive medical care.

But on Oct. 21, Zoe died. Ms. Stoltz says she told the lawyers of her baby's death the next day. Shortly after that, the firm dropped the case. A lawyer for the firm wouldn't comment.(emphasis mine)
If a physician had done what was described above, it would rightly be construed as abandonment.

What is it called when a lawyer does it?
Cross-posted at Galen's Log
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