Personal Injury and Fetal Monitoring

Blue Eyes - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

This year my wife JoAnn attended a fetal monitoring conference in Las Vegas.  Both doctors and nurses attended the course where they reviewed interpretation of fetal heart rate and its relationship to uterine contractions during the delivery process.  Accurate analysis of this real time data is crucial to the well being of both mother and baby during labor.  It is a technical subject primarily of concern to medical personnel who work in labor and delivery and attorneys who litigate malpractice cases stemming from poor outcomes.

A mock trial was conducted at the conference which showcased personnel injury and defense attorneys, who specialize in obstetric malpractice law.  Their comments regarding trial strategy, particularly jury selection, were sobering but not unexpected.

Jury selection is the first, second, and third most important aspect of a personal injury case.  The personal injury attorney averred he was looking for compassionate jurists who could identify and sympathize with his client.  He avoided selecting teachers and those working in the medical profession.  From the perspective of the personal injury lawyer, the penchant for relying on the facts, asking questions, and dealing with problems logically disqualifies a juror.  It is not surprising these characteristics are exactly the traits desired by the defense attorney.

The audience asked the attorneys how the behavior and personal interests of potential jurors could affect the trial.  Although these questions were hypothetical and often asked for comic effect, this is deadly serious territory for lawyers.  The decision whether to retain or disqualify a jurist rested heavily on intuition.  The ability to predict a person’s reaction to testimony, based on occupation, hobbies, and book preference is an art.  An inability decipher these connections means the difference between winning and losing and a lot of money. 

There is something inherently amiss with a system where the delicate balance of justice can be influenced more by sobbing testimonials and stagecraft than actual events of the case.  It is time to dispense with theatrics and admit in medical malpractice cases, the jury system is too capricious and vulnerable to manipulation.  For once the Europeans have the right idea of using three judge panels to rule on these matters.  Should a verdict be rendered based on a prospective juror’s belief in witchcraft, passion for tattoos, political affiliation, church attendance or preference for People Magazine or The American Rifleman?     

   

Medical Malpractice and the Eveready Rabbit

Haleakala Crater in Maui, Hawaii - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com


In the world of physics it is impossible to design a perpetual motion machine, since it violates the laws of thermodynamics. There unavoidable inconveniences like entropy and conservation of energy and matter that get in the way. No such constraints inhibit malpractice litigation where anyone can be sued for any action for any amount. The world of medical malpractice law might as well come from another universe, for like the Eveready Battery Rabbit it just keeps going and going and going.


Doctors and hospitals pass higher malpractice premiums to patients. In hopes of avoiding potential law suits, doctors practice defensive medicine, and hospitals reduce efficiencies by imposing stifling documentation requirements on employees and the medical staff. Likewise these costs transferred to patients, but do little to fend off plaintiff attorneys.


Many physicians at one time or another have been the target of a frivolous law suit or been subjected to the travails of contentious litigation. The only party who consistently benefits from the current system is the trial lawyer. It is time to abandon the adversarial model in favor of a more civil, collaborative approach between the litigants rather than the traditional gauntlet which is time consuming, emotionally draining, expensive, and capricious.


In frustration with the present system and hoping to discourage malicious law suits, physicians often advocate “loser pays” scenarios and laws which facilitate punishment for attorneys who initiate meritless litigation. Appealing as these may seem, it is a political non starter. Improving the process must receive support from the legal community and insure harmed patients are guaranteed their right to compensation as a result of actual malpractice.

Alternate Dispute Resolution (ADR) is a process which employs mediation and arbitration to settle legal disputes and offers a fresh approach to deal with medical malpractice suits. From the outset ADR allows both parties, with the assistance of an attorney or judge who is well versed with medical issues, to participate in formulating a mutually acceptable solution. Every effort is made to dispense with the emotional component of the case which easily distracts the litigants and unnecessarily prolongs the process. It dispenses with jurors, who are often selected for their malleability instead of their ability to understand complex medical problems. It avoids judges whose varying abilities and motivations can lead to unfair verdicts. The goal is clear: at the conclusion of the dispute neither party may be completely satisfied with the result, but resolution is comparatively swift and fair.


The bold first step to revamp the system requires anyone who receives medical care paid through a government funded program such as Medicaid or Medicare and non paying patients to accept mandatory ADR in case of alleged malpractice. As a precedent, the Kaiser Permanente company stipulates its patients reconcile disputes in this manner.


Dealing with commercially insured patients presents a different circumstance, since private resources are spent to access medical care. In this case the medical insurance carrier offers the insured patient a choice between a less expensive policy which requires ADR or a more expensive conventional policy which makes no stipulation how potential disputes will be handled. There are distinct advantages of the ADR plan for physicians, patients, health insurance companies, malpractice insurance carriers, hospitals, and the court system:

• Physicians’ and hospital malpractice rates will drop as potential exposure falls accordingly. As the system becomes more widely accepted, physicians will be less inclined to practice defensive medicine.

• Patients’ insurance premiums will fall due to physicians ordering fewer medically unnecessary tests and medications, and hospitals regaining operational efficiencies.

• Health insurance company expenses for patient services eventually will drop as physician discipline is reestablished.

• Malpractice insurance company payouts will reflect a less hostile and volatile legal environment.

• Trial lawyers’ preeminence will give way to attorneys and judges who resolve disputes through ADR.

• The over burdened court system will be relieved of most malpractice cases which will be settled in other venues.

Even the indefatigable rabbit of television commercial fame has limitations, and those who buy the product are not so naive to believe any process or machine can operate indefinitely. The medical malpractice industry, which operates with virtual impunity and benefits a few at the expense of many, needs to rejoin a universe where common sense and sane conflict resolution are the rule.