The Kind of Person Who Sues

courtroom300A lot of prospective clients who call our office start the conversation by saying, “I’m not the kind of person who sues.”

I assume those people don’t really mean that, because otherwise, why would they be calling a lawyer’s office to ask about bringing a lawsuit?  Yet I’m always amazed by how many callers feel the need to tell me what kind of people they aren’t, as if bringing a lawsuit is somehow shameful or wrong.  What most of these callers are actually trying to do is to convince me from the outset that their cases are serious and meritorious, that they have truly suffered a grievous wrong at the hands of someone else.  Left unsaid, perhaps, is the caller’s perception that many people who sue bring frivolous claims over trivial matters, and the caller doesn’t want to be lumped with those litigants.

The “kind of people who sue” include people of all ages, professions, and social, economic, ethnic and racial backgrounds.  Our clients include teachers, office workers, bus drivers, government employees, corporate executives, doctors and nurses, lawyers.  We represent people who are receiving public assistance benefits, and people who have trust funds, people who go to work every day–or used to before they were injured–and people who are retired.  But they all have two things in common.  The first is that they all feel they have been harmed by someone else’s negligence, and they want to do something about it.  The second is that they all have the right to file a lawsuit and ask a jury of their fellow citizens to resolve their dispute.

The “kind of people who sue” are usually people who have suffered some sort of personal or family tragedy.  People who say that they aren’t the “kind of people who sue” are often simply people who have never had the misfortune to be injured by another’s negligence.  Until they have personal experience with unnecessary suffering or death, they may not realize the effects those events can have.  But when someone suffers a serious injury, or loses a loved one to negligence, the reasons people sue all of a sudden become very clear to them.  There is a normal human desire for justice, which in our society is achieved through the court system rather than through violence or other means.

The stigma attached to “people who sue” is a relatively recent phenomenon fueled  by large-scale public relations efforts by corporations, insurance companies, doctors’ organizations and other so-called “tort reformers.”  As a result of these well-financed efforts, the meaning of the word “plaintiff”–the person who brings a lawsuit–has changed from “injured victim” to “money-grubbing freeloader looking for a handout.”  And the term “trial lawyer” no longer means an advocate for the rights of injured victims, but is used as a pejorative term.

It’s a sad change, because it undermines the very foundations of our justice system.  People who have been injured through negligence have a right to seek compensation from the people and entities responsible.  And negligence suits have been responsible for many positive changes in our society: safer cars and consumer products, better medical practices, more secure schools and other facilities.  That’s a major motivation for many people who bring lawsuits–they want to make sure that no one else is injured or killed in the same way.

Most people would certainly hope never to become the “kind of people who sue.”  But when circumstances force someone to become a party to a lawsuit, it shouldn’t be something to be ashamed of.

Debunking Defensive Medicine

bitter pill coverIn my last post, I summarized the recent Time Magazine article by Steven Brill, which exposed the rampant abuse and overcharging that drive up health costs beyond the means of many ordinary people–even those with health insurance.  Brill demonstrated how “non-profit” hospitals often generate stunning profits by marking up the cost of both common and specialty medical supplies and by billing separately for items most people would assume are included within other charges.

Although not cited as a main force behind soaring medical costs, Brill does mention the role of so-called defensive medicine, the practice of ordering tests or treatments based on fear of a malpractice suit rather than good medical practice.  While Brill acknowledges that other factors–including personal profit motives–may prompt doctors to order “unnecessary” tests or treatments, he also assumes that some doctors do treat patients with one eye on their possible malpractice liability, ordering tests for fear that they will be sued if they don’t do so.

Brill’s proposed solution to the problem of defensive medicine is one that has been around for a while.  He suggests that doctors would order fewer unnecessary tests if they knew that they could not be held liable as long as they followed established professional standards for diagnosing a particular condition.

There are two main problems with Brill’s solution, which, if properly implemented, in theory would have the potential to help patients by insuring that more people get appropriate care.  One is the obvious problem of how the “established” standards are set—and by whom.  If physician organizations are permitted to set artificially low standards, patients will suffer.

But the other problem is that physician groups have fought valiantly—and for the most part successfully—against the establishment of this type of standards.  Unfortunately, the medical groups’ opposition is not based on any concern that patients may be harmed by standards that are set too low.  Rather, the opposition from physicians is motivated by pure self-interest: they are afraid that if there are clear universal standards, they will have absolutely no defense if they don’t follow the standards!

Because a favorite defense technique is confusion.  Malpractice defendants love to argue that medicine is an art, not a science, that medicine is not practiced from a “cookbook” that gives the proper treatment in each  given situation, and that practicing medicine requires doctors to “exercise their judgment.”  Imagine what would happen to this defense if there was a clear, unambiguous professional standard that required certain actions in a given situation. Rather than protecting the doctor from liability, that unambiguous standard would provide the injured plaintiff with precisely the proof of negligence that he needs.

Why Medical Care Costs So Much

bitter pill coverA recent special issue of Time Magazine is must-reading for anyone interested in understanding why health care costs are spiraling out of control.  As author Steven Brill reveals, hospitals routinely reap unconscionable profits by adding huge markups to the charges for common supplies and medications that any consumer could buy online for a fraction of the price, billing patients several times the actual cost for specialty medical devices, and ordering unnecessary lab and radiology studies that generate added revenue.

Brill cites specific examples: $108 for the common antibiotic ointment bacitracin, $1.50 for a single acetominophen tablet, $7 for the little alcohol-soaked pad used to swab your arm before you get an injection or a blood draw.  The list goes on for more specialized items: $49,237 for a medical device that one source estimated cost the hospital perhaps $19,000 to buy, and $13,702 for a medicine that, using the manufacturer’s financial investor reports, may have cost as little as $300 to make.

Brill’s extensively researched article dissects medical bills received by several patients around the country, most of whom needed extensive medical care due to an unexpected accident or diagnosis of cancer.  These middle-class citizens, all with health insurance, were financially ruined by the hospital bills they received.  Even those who received assistance from billing advocates who specialize in negotiating medical bills, the charges were well beyond their means.

For example:  In the 11 months between his diagnosis and his death, the total bill to a California man who died of lung cancer came to $902,452.  His health insurance paid $50,000 of that total, the lifetime limit of the policy.  And even after aggressive negotiation by a trained advocate, his family still owed nearly $200,000–an amount they can never hope to pay.   A school bus driver from Connecticut slipped in her yard and broke her nose.  Her six hours in the emergency room cost $9,418.  Her insurance coverage was limited to $2500 per hospital visit and a judge ordered her to pay the remaining $7000, less $500 he ruled was duplicative.  A man who sought cancer treatment at renowned MD Anderson Cancer Center in Houston had to pay $83,900 in advance to get his treatment plan and begin chemotherapy.  Needless to say, his insurance plan, which capped costs at $2,000 a day, was not particularly helpful.

Brill contrasts these horror stories with a satisfied medical consumer, an older gentleman who has received excellent medical care from world-famous facilities with minimal out-of-pocket cost to him, while Medicare and a supplemental insurance policy covered the lion’s share of the charges.  Still, Brill notes, the amount paid by Medicare is far below what the providers charge to patients with private insurance or no insurance.  For example, the bus driver with the nosebleed has to pay $6,538 for three CT scans; Medicare would pay just $825 for the same studies.

Brill also exposes the exorbitant salaries paid to many hospital and health care administrators, running to the millions of dollars per year.  The head of the Yale-New Haven hospital system earns $2.5 million per year–nearly $1 million more than the University president.  The chief executive officers of the ten largest non-profit hospitals in country all make more than $2 million per year–with the highest earner topping out at nearly $6 million.  To put that in perspective, Brill notes that the head of the American Red Cross is paid just $560,000 per year.

One of Brill’s suggested cures for the out-of-control costs is almost counter-intuitive.  Rather than raising the age at which patients become eligible for Medicare, Brill suggests that the eligibility age ought to be lowered.  This would spread the risk by including more younger (and presumably healthier) patients in the pool of covered patients, and would lower costs overall because Medicare pays a much lower rate for care than private insurers.  For example, Brill notes that if a 64-year-old woman profiled in his article, treated at a Connecticut hospital for chest pain, had been 65–Medicare would have paid something in the range of $2500-$3000, instead of the $21,000 she was charged.

Interestingly, the medical malpractice system draws only indirect criticism from Brill.  While he suggests some reform might be appropriate, his stated reason is so that doctors won’t incur additional costs  by ordering unnecessary tests for fear of being sued.  More on this thought in the next post.