I spend a lot of time at cocktail parties and gatherings of friends biting my tongue. I argue with people for a living so I honestly don't care to argue with friends during times when I am to be relaxing. So, when discussions of the need for tort reform, caps on money damages, and frivolous lawsuits invade the conversation I slip away to a neutral corner. I do, however, feel obligated to provide the truth to my "educated" friends and colleagues. What better place than here?
I have personally never filed a frivolous lawsuit. Does that mean that I have never lost a case? No, it does not. In all honesty, you can count the number of cases that I have lost on one hand. And, I should have won each and every one of those cases as well. Should I have won those cases because my partner, Neil Rosen, and I are the greatest trial team ever? No (but we are really good at what we do!). We should have won those cases because of the system that we employ to screen and select the meritorious cases.
We employ two very bright physicians on a full time basis and we pay our doctors very well. We pay them well because they are very bright. Perhaps more importantly, we pay them well because they are invaluable to what we do. Our two physicians assist us in reviewing every single medical malpractice inquiry that our office receives. On an annual basis that figure runs between two and three thousand. All cases begin with an in-depth medical telephone intake with one of our physicians. Once the intake is completed, the case is presented to the lawyers and in many cases the second physician. Hundreds of cases can be rejected as non-meritorious at that point. Non-meritorious does not necessarily mean frivolous. Many inquires would indeed be frivolous lawsuits if pursued. Others, however, are meritorious but get rejected for other reasons.
Medical malpractice cases are expensive to pursue. Many cases that we review simply do not justify, from an economic standpoint, the pursuit of a medical malpractice lawsuit. For example, under Pennsylvania law, the death of an 85 year old with no surviving spouse might not be economically worth pursuing. Is the loss of a parent any less traumatic to the children and grandchildren of an 85 year old? Absolutely not. Unfortunately, we must try and explain to these families that the wrong inflicted upon them is not financially worth pursuing. A meritorious case for which no health care provider will be required to make redress.
If a case survives our initial screening process all pertinent medical records will be purchased. Once the records are received they are scrupulously analyzed by a team of doctors and lawyers. In many instances, in-depth medical research is conducted to fully understand the issues involved in the case. Some cases are rejected at this juncture. If a case survives this review, we then recruit an expert or experts who are well respected on the exact issues involved and ask them to conduct an independent review. Because we frequently hire nationally recognized experts, these reviews tend to be expensive. Many cases are determined to be non-meritorious by our consulting experts. If so, the case is not pursued. Only after we have received a favorable review (also known as a certificate of merit) from a specialized expert is a case accepted for the initiation of a lawsuit. Of the 3000 or so cases that we review annually, about 50 are accepted for filing. And that is the reason that I should have won every single case I have tried. When you meticulously pick the battles that you want to fight, you win most of them.
The system that we have in place, from the salaries of our physicians and staff to the costs of medical records and experts, is very expensive. I can only laugh when the ignorant remark that my forty percent fee is expensive. If they only knew the net amount! Our system allows us to pursue the meritorious cases and also takes about 2950 cases of the judicial system. I have never received a thank you, or even an acknowledgment, from those who champion tort reform for filtering these cases. Instead, I get treated to falsehoods at social gatherings.
Politicians pin colossal hopes for health care reform on tort reform. The problem with their plan is that it is not based on facts. They are simply not being honest to the American public. According to the Institute of Medicine, between 44,000 and 98,000 Americans die each year of avoidable errors. Yet fewer than 11,000 were compensated in 2008, down from 15,000 in 1999. Perhaps these figures were the origin of the phrase, "Getting away with murder?" And those figures only take into account deaths.
The National Practitioner Data Bank found the average U.S. malpractice payment for 2008 was $326,000, "the smallest on record." Eighty percent of that money went to those with significant permanent injuries such as quadriplegia and brain damage, needing health care the remainder of their lives and having enormous medical expenses. Cases that no one, not even a politician, would call frivolous.
Medicare's administrator told Congress in 2005, that malpractice litigation accounts for only 0.6 percent of U.S. health care costs, and medical liability accounts for less than 1 percent of the country's health care costs with "the vast majority of victims receiving no compensation whatsoever." Why is the analysis not completed? The next issue that should be addressed in this discussion is who pays for the post-error medical care needed by the "vast majority of victims" who receive no compensation? You do!! That's correct. The working, tax-paying American. It is humorously ironic that the proponents of tort reform are advancing "reform" that places additional burdens on the innocent tax payers while immunizing the wealthy wrong-doers. Why should physicians and health care providers get special treatment? If they were the at-fault driver in an auto accident would they expect special treatment from the legal system there as well?
Americans for Insurance Reform found that medical malpractice premiums amount to one-half of 1 percent of health care costs and medical malpractice claims, one-fifth of 1 percent of health care costs. Limiting the rights and the recoveries of victims will not solve any of the problems related to our current health care system. The right to a trial by jury and the right to have a jury of peers decide what compensation, if any, has its roots in the Constitution. Allowing politicians to alter or take away these rights has repercussions far beyond this blog. I can't defend my entire profession because the law, like all professions, has members who do things that do not make us proud. But it truly isn't fair to lump the small percentage of bad with the large percentage of the good and label the entire system as bad. I entered the law to help people and I am proud to acknowledge every case that I have ever pursued. I am also proud of the banker's box of thank you cards that I have received over the years for the positives that I have added to lives of victims of medical malpractice and personal injury. From firsthand experience I can assure you that victims need more rights, not less.
- Jon R. Perry, Attorney