Why do patients sue?

Because they perceive malpractice, says Manhattan plaintiff’s attorney Jeff Kimmel.

A patient’s perception may be influenced by actual medical facts, but his relationship with you and your staff and how well he thinks you’ve handled a negative medical outcome weighs very heavily in his decision to sue. “Almost everyone says that ‘If the doc had only apologized or been nice to me, or [if] he would’ve come to me,’” the lawsuit could’ve been averted, says Kimmel, a partner in the law firm of Salenger, Sack, Schwartz & Kimmel. “‘But he tried to cover it up, or ignored it, or had been arrogant about it. Now it’s war.’”

Of course, a bad treatment outcome does not usually mean malpractice. People sometimes die during procedures. Complications do occur. Whose fault is it? Sometimes it is the doctor’s; more often, it’s not. That’s why Kimmel and other plaintiff’s lawyers are very selective in the cases they’ll take (and still lose more often than they win, on average). Here’s one of their secrets: They’re not looking merely for cases of physician error; they’re also looking for unsympathetic defendants — for physicians who seem unfeeling. Take steps now to protect yourself. Here’s how, straight from the ones on the other side of the courtroom.

What makes a good case?

For trial lawyers, establishing the facts is the first important step. What exactly happened? When did it happen? Who was involved? Where does it leave the patient? This is very specific evidence, but it must be in place to support the claim, says Kimmel, either “in the records or strikingly omitted from the records.” Kenneth Levine, a 20-year veteran plaintiff’s attorney based in Boston, says, “lawyer’s opinions don’t matter as much as it might seem.”

So, the documentation in a patient’s chart — or lack thereof — is of supreme interest to a trial attorney. So is the damage, which must be life altering and severe. A scar that turned out a half-inch longer than expected? Un-uh. Loss of brain function? Bingo.

Also, such damage must have actually happened. “We often get calls where people say, ‘I could’ve died!’ Well, you didn’t,” says Kimmel. No case.

Most lawyers are not medical experts, but they know how to secure one to review a case and offer an opinion. This opinion must solidly support the damage, backed up by the expert’s immutable credentials in that exact area — a slippery slope for the trial attorney.

Finally, a good trial attorney will consider the plaintiff’s likeability, as in, is he? “Some people just aren’t,” says Levine, and a plaintiff with an off-putting demeanor can quickly poison a case. Levine also looks for certain other deal-breaking signs that divulge a person’s inner gold digger. “If I meet with somebody and in that first meeting the person asks how much the case is worth,” he says, “I generally don’t take that case.”



A picky profession

Believe it or not, reputable trial lawyers who specialize in litigating malpractice cases do not relish taking every case to court. Why? Because “we’re likely to lose,” says Kimmel. He estimates that 80 percent of medical malpractice cases that go to trial rule for the defendant — much worse odds than most other personal injury cases.

The U.S. Department of Justice numbers differ only slightly. According to government data from 2003 (the latest available), medical malpractice is the second-toughest type of tort case for plaintiffs to win at trial, with defendant physicians prevailing in 63.3 percent of verdicts.

The Justice Department’s data reflect trials in federal court; most malpractice claims are heard in state court, and states vary widely in terms of their sympathies toward plaintiffs. Still, the majority of cases don’t even get that far: According to a 2006 Harvard School of Public Health report, 61 percent of medical malpractice suits are settled out of the courtroom. And it takes a sizeable chunk of change for lawyers to prepare for such cases — $50,000 would be a “normal” outlay, says Kimmel. Meanwhile, with many states passing laws capping damages for pain and suffering (often at $250,000), and the amount of any judgment that attorneys can take home, the potential payout for plaintiff’s lawyers is greatly reduced, without any reduction in their risk.