Justinian Lane

A Medical Malpractice Testimonial

“John,” a frequent TortDeform reader, gave me permission to share this story:

I have read some of the things on Tortdeform and would like to share our medical malpractice experience.  My hope is that others will share their experiences. Perhaps, if enough experiences are shared, we can change public perception. Currently, that perception is that many are getting rich making frivolous medical malpractice claims, that juries give away huge amounts of money for the slightest thing, that this has a big impact on our medical insurance cost, and that it drives medical malpractice insurance so high that doctors go out of business. This perception fuels a cry for tort reform and is taken up by our politicians. The most common “fix” is to limit damages awarded. While this sounds good in theory, did you ever think what happens to someone who is actually a medical victim in this “reform” environment? The following is our “story”.

We live in Texas, which is touted as the "model" of tort reform for medical malpractice.  My wife and I had planned our “dream” vacation. Before we left, she wanted to get a procedure (which she has had several times before) done on her spine to alleviate pain. Unfortunately the doctor messed up and she was left paralyzed on one side. She had additional complications which left her in constant pain, unable to walk without a walker, and then only a minimal amount. It is difficult for her to function and I prepare her food, bathe her, dress her, fix her hair, etc.  Our life has totally changed. 

When we explain what happened to our friends, one of their first responses is, “I guess you’ve sued and gotten a big award”? It seems so obvious to them. However, it’s not so easy. Our first issue was to find a lawyer. Expenses will be $50,000 - $250,000 to try the case. If the lawyer loses, this money comes out of his pocket. In 75% of the cases that go to trial, the doctor wins. So the lawyer’s not taking the case, unless he is very confident of winning. Second, there must be written expert opinion, from doctors in the same field as the plaintiff, who will testify to the malpractice – before the case can even get on the docket. So much for “frivolous” lawsuits!

We have already spent $45,000 out of our pocket (beyond what medical insurance covers). I estimate that over my wife’s lifetime we will need $1,000,000 to $1,250,000 to cover extra expenses. Experts in our case tell me that my estimate is low – it could well be double this. The lawyer’s fee is 40% of gross recovery plus expenses (and interest on those expenses).

As we proceed with the case, we are confronted with additional sobering facts. Today, doctors attend classes to learn how to shelter their assets (trusts, etc). Even if we do go to trial and win that two-million dollar award, the doctor’s assets are sheltered, he will declare bankruptcy, and the most we will get is the limit on his malpractice insurance - $750,000. In addition, medical insurance companies (and Medicare) have a little clause in their policy called subrogation. This means that if you recover money in a case, they will expect you to pay back (out of your recovery) all the money they paid for hospital bills, rehab, etc. Their first requests to us were for upwards of $300,000.

We are told we are pretty lucky. Following negotiation with the medical insurance company, and after lawyer fees and expenses, we stand to recover about $250,000. Still the feeling is bittersweet. This totally ignores the constant pain and suffering my wife experiences, her inability to function normally, and the likelihood that she will spend her last years in a nursing home when I am too old to care for her. Nor does it deal with the change in quality of life I have as a caretaker. I have no idea how we will meet the mounting financial strain - $250,000 is 12-25% of what we will need.

We feel we have been victimized twice - the first as a medical victim, the second by the judicial “tort reform” system. My lawyer says that our story is common place – in fact there are many worse than ours. To add injury to insult, I am told that we will be required to sign an agreement that we will not reveal facts of our case to the media. Again, an attempt to keep the real truth hidden from the public. While I have not yet signed such an agreement, I have kept names and details out of our story to protect everyone involved.

Again, I implore others to share their story in Tortdeform (without violating any legal agreements). If sufficient “stories” are revealed, perhaps public opinion will side with the victim, and more appropriate “tort reform” can occur.



Justinian Lane: Author Bio | Other Posts
Posted at 1:38 PM, Oct 06, 2010 in Medical Malpractice | Tort Victim Tragedies
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Sorry to hear about your wife and her spine. I am a med mal claims guy for the last 25 years. A few things re your focus on caps. Most states only cap the pain and suffering cause of action. you cant measure nor weigh pain. A subjective concept compensated via objective means = cash. Other causes of action , like loss of earnings is objective.

Regarding frivelous. That never means that the costs involved are frivelous, the merit of the claim can be frivelous. You know the costs involved and many times, not as much any more, a meritless claim would be attempted, knowing that the Insurance carrier would pay $100k just to save on the adjustment expenses.

Regarding the fact that Doctors win 75% of the time. My experience is really closer to 85%. What this means is that most cases get settled and the carrier only tries those cases that a slam dunk winners, Even then, they lose.

Your focus should be about the amount of cash that the injured party, your wife, doesnt receive. If you netted $250k, you got most of the doctors policy. your attorney probably got more than you did. How about a sliding scale for attorney fees?

RE a doctor protecting his assets. Isnt that smart? done we want smart docs. Wouldn't you do it.

There is plenty of room to make things better, but there is alot of money involved preventing anyone really wanting to fix it. Each side claims that they want it fixed, but only if it doesnt affect their side of income.

best of luck
VP claims

Posted by: James O'Hare AIC AIS RPLU | October 7, 2010 10:38 AM

I'm sorry for the situation but I'm a little confused, it indicates the doctor "messed" up but was the mistake a result of negligence? Mistakes and errors happen, people sign papers before surgeries that state such.

Posted by: SLJ | October 10, 2010 12:04 PM

I find it interesting that you automatically believe that the doctor COULDN'T HAVE POSSIBLY messed up. If this was a known risk of the procedure and was not negligence, a trial lawyer in Texas would not have taken the case and told the victim the case has merit.

You seem like a doctor with the "God complex". This is why we need to increase visas into this country, so that doctors who feel they are God are weeded out of the profession.

Sadly, the only time doctors realize what tort reform has done to victims is when the doc's baby girl is paralyzed due to pure medical malpractice. It is interesting when they try to sue that operating doctor and are told they can not due to the caps. They become opponents of tort reform after that, although it is too late.

Posted by: RE SLJ | October 11, 2010 5:35 PM

No you are the one with the God complex, accidents DO happen and that's what insurance if for but to try and take a persons life savings for one incident they themselves didn't want it pathetic. Also the emotional impact is there and does effect tx of others down the road and not necessarily in a good way even tho that's what you'd like to think. What about all the good outcomes and the people who were helped?? Is it that no good deed goes unpunished??

Posted by: murcky | November 14, 2010 2:18 AM