Your Latest Questions & Answers

If you have a medical malpractice question, please email me or post it in the comment section below. Every question will be answered, but not all questions are retained and posted on the blog. Thank you!

Question:

My mom suffered burns to her leg she was admitted to the hospital and discharged the following day. After going to wound care I was told she should have been kept for 7 days, is this negligence on the hospital?

Answer:

Hospital emergency rooms and operating rooms contain elements that can cause fires, and burns occurring during surgery are relatively frequent.

If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts,  ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case.

Click here for an article that explains what you can expect when filing a medical malpractice case.

Click here and here for more information about me.

Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com. 

Question:

I had a surgery in 2005. i almost died because of it in 2012. Can I still sue for medical malpractice seven or more years after the bad surgery ? I had terrible medical problems after this surgery misdiagnosis by two docters including the one I got the surgery from and am missing three inches of my intestine and one kidney after they took a cancerous tumor off it. I was never sick a day in my life and I am only 55 years old. 

Answer:

A statute of limitations is a law setting a time limit on legal action in certain cases. There are different statutes of limitations on different kinds of cases. For example, a breach of contract case often has a longer statute of limitations than a personal injury action. Complicating matters more is the fact that the statute of limitations in any cause of action is usually governed by state law, and different states have different time limitations. Click here for a website that provides a rough estimate of the statute of limitations in all 50 states for common causes of action. Note that this website advises that these limitations periods are merely rough estimates. You should contact a local attorney (one in your state) who can tell  you whether these estimates are correct.

In medical malpractice cases, circumstances sometimes justify allowing cases to be filed after the statute of limitations expired. For example, if a surgeon leaves behind an instrument during a surgery and a  patient only discovers the foreign object after the limitations period has expired, most states have a common law exception to the statute of limitations that would allow a plaintiff to file a lawsuit that would otherwise be out of time. Finally, statutes of limitations usually incorporate exceptions that extend the limitations period for minors and people who are incapacitated.

Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case.

Click here for an article that explains what you can expect when filing a medical malpractice case.

Click here and here for more information about me.

Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com.  

Question:

Gallbladder removal on a 17 year old female. Got complications with Bile leak. Had to have two stents placed and replaced for leak. 52 oz of bile liquid was removed from the stomach. Was hospitalized for 15 days.

Answer:

If the bile leak was due to a surgical mishap, then you may have a medical malpractice case. Surgical errors leading to a bile duct injury are relatively common. They are avoidable if the doctor takes a special x-ray known as a cholangiogram before surgery. There is a good deal of literature suggesting that this needs to be done, but for some reason, most doctors do not offer it. 

There will be a question about whether your case is financially viable. See the articles below which discuss this issue. 

If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts,  ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case.

Click here for an article that explains what you can expect when filing a medical malpractice case.

Click here and here for more information about me.

Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com. 

Question:

My daughter did not talk until she was 2, also had feeding and breathing problems as a baby. I went into our family doctor several times looking for help with her speech. We kept being told that she would talk when she was ready. Finally we went to a speech therapist after we demanded a referral. The speech therapist diagnosed her Cleft Palate with-in minutes of speaking with her. This defect is usually caught on ultrasound before birth, however it is required to be caught in the hospital at birth. Ours went 2 years. Because of the delay the surgeries to fix it have been unsuccessful. We are now on our 4th surgery. She has lost some hearing, as well as permanent speech defects due to the delay in diagnosing her.

Answer.

The quick diagnosis by the speech therapist certainly suggests medical malpractice. Cleft palate is usually treated with surgery within the first 6 months to year after birth. If the delay in diagnosis is causing the problems and the need for multiple surgeries, then you should definitely contact a malpractice lawyer. 

Contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts,  ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case.

Click here for an article that explains what you can expect when filing a medical malpractice case.

Click here and here for more information about me.

Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com. 

Question:

Do I have a medical malpractice case after having an outpatient procedure for large ruptured disc and severe radiculopathy 7 days later spinal fusion?

The first surgery outpatient microdisectomy for large L-5, S-1 disc rupture and left leg radiculopathy and cauda equina syndrome. Doctor pulled several large disc fragments and cut a blood vessel causing large amount of blood loss. Told me he got everything out and there may have been some small retained fragments however none were neurocompressive. I woke up in even more severe pain could not control my bladder while there. The doctor assured me nothing was wrong he got everything out. I was screaming/crying in excruciating pain. Doctor told my husband to get me iron pills for little blood loss I was discharged and told to go home and walk immediately I continued to worsen and . 5 days later admitted through ER with transfusion level hemoglobin at 6 and severe pain. Doctor did 2 surgery I had multiple huge retained fragments S-2 nerve root was sever displaced which was neurocompressive I have nerve damage in leg, pain and now disabled. First surgery was not standard of care and he knew... 

Answer:

Yes, it sure sounds like you have a case that should be investigated. Obviously, you would not expect to need a second surgery to fix what was not repaired in the first within five days of spinal surgery. Additionally, a hemoglobin level less than 7 is a crisis itself. 

If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts,  ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case.

Click here for an article that explains what you can expect when filing a medical malpractice case.

Click here and here for more information about me. 

Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com.  

Question: 

I was burned real bad from radiation on my right breast. I had breast (Right one) surgery in 2009. Then in 2010 had chemo and then radiation. I was burned so bad that my skin is like leather. I complained to my radiation doctor that my breast was hurting because it was trying to grown back and my skin would not let it grown out. So it was pulling really bad on the right side. So when I told her about it several times she said it was caused from my surgery that removed my cancer. I talked with my female doctor, my breast surgeon and my chemo & dermatologist doctor they all said it was from my radiation. And it was the worst they ever seen. So I had my breast removed and it looks like dog meat. I believe that it was no vault to my surgeon because he had to put to pieces of leather back together. The pain is out of this world. They have me on pain pills, sleeping pills and antidepressants. I go nowhere now because of the pain. And sometimes the sleeping pills do not help. Do you think I should talk with a lawyer? 

Answer:

It sounds like you have a case that should be investigated. The question in these cases is who is at fault. It can be the maker of the radiation equipment hardware, the software company that programmed the amount of radiation that the device delivers, the technician who runs the machine and actually delivers the radiation, the people who are responsible for making sure the radiation machines are properly calibrated to deliver correct doses of radiation or the oncologist.

If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts,  ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case.

Click here for an article that explains what you can expect when filing a medical malpractice case.

Click here and here for more information about me.

[Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com]

Question:

On 11/19/12 I went in for a knee replacement. I was released 3 days later. A week later I ended up in the ER room with an infection. They admitted me and put me on antibiotics for two days and released me. On 12/8/12 I was taken back in the the ER room. I was admitted again and this time had to have another surgery on the knee to clean out the infection. I was released 3 days later with a Pic-Line in my arm. I then went through 6 weeks of home care and antibiotics. To date I have more pain and less mobility in my left knee.

Answer:

Accepted standards of medical care require an orthopedic surgeon to put a patient on prophylactic antibiotics following knee replacement surgery. If you are surgeon failed to do this than he failed to meet accepted standards of medical care. Nevertheless, there will be a question about whether or not the case is financially viable. Medical malpractice cases are damages driven and unless this leaves you with a permanent problem the case may not have enough of financial upside for an attorney to prosecute it. This is a judgment call, and different attorneys have different standards for whether or not they want to get involved in a case.

If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state).  They take these cases on a contingency basis which means you only have to pay if you succeed.  Additionally, initial consultations are usually free. You can use the "Find a Lawyer" service through this website to research medical malpractice attorneys.  Then, visit each attorney's website and look for a firm that has a record of successful verdicts,  ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful.  They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

Click here for an article that discusses the three main questions I ask when deciding whether to investigate a potential medical malpractice case.

Click here for an article that explains what you can expect when filing a medical malpractice case.

Click here and here for more information about me.

Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Email: jratkowitz@starrgern.com  Skype: john_ratkowitz Web: www.starrgern.com.

Starr Gern Receives Tier 1 Best Law Firm Ranking for work in Medical Malpractice by national survey conducted by U.S.News and World Report

On November 1, 2012, Starr, Gern, Davison & Rubin was one of nine law firms in New Jersey recognized as a Tier 1 Best Law Firm by U.S.News and World Report in the field of Plaintiffs Medical Malpractice.

The U.S.News – Best Lawyers® “Best Law Firms” rankings is based on an annual evaluation of client critiques and peer review from leading attorneys in the field. Firms are ranked in in part based on their  expertise, responsiveness, integrity, and cost-effectiveness.

A first tier ranking includes those firms that scored within a certain percentage of the highest-scoring firm(s).

BOOK REPORT: MMPI, MMPI-2, & MMPI-A in Court: A Practical Guide for Expert Witnesses and Attorneys (Kenneth S. Pope, James N. Butcher, Joyce Seelen)

MMPI, MMPI-2, & MMPI-A in Court: A Practical Guide for Expert Witnesses and Attorneys (hereafter "MMPI: A Practical Guide") is a book that should be in the library of any trial attorney who deals with cases involving psychiatric and psychological disorders. The MMPI tests are the most widely used personality tests in clinical practice. The exam provides several behavior and symptomatic hypotheses about the person who takes the test.  First, the answers that test takers provide in the exams aid in the diagnosis of psychiatric conditions. Second, the MMPI tests incorporate the use of scales to evaluate whether psychiatric problems are the result of specific problem areas, such as alcohol or drug abuse, or emotional control issues. Third, there are validity scales which yield information about patients’ credibility. Therefore, the MMPI tests can lead to claims about whether patients are malingering or have intentionally exaggerated their symptoms, thus lending objective support to a frequently used defense position. 

The utility of “MMPI: A Practical Guide” is that it allows attorneys to understand and interpret the results of the MMPI studies, and therefore evaluate defense experts' conclusions about the results of these tests. It is virtually impossible to challenge a psychologist or psychiatrist who utilizes an MMPI test as the basis for his opinion without a basic understanding of what the results from these tests mean. 

In a recent case involving the use of an MMPI test, I obtained the results of the MMPI test administered to my client and after reviewing “MMPI: A Practical Guide,” discovered several interesting things. First, since my client was a learning disabled 18 year old living at home and still in high school, the psychologist should have utilized the MMPI-A test on my client. Second, the psychologist administering the test cherry-picked certain validity scales to support a claim that my client was exaggerating her symptoms, despite the fact that complete use of all of the available validity scales suggested that she was not. Third, the psychologist misinterpreted other tests administered. Thus, he wrote in his expert report that my client was malingering, notwithstanding the fact that the MMPI test administered demonstrated my client was minimizing her mental problems. 

“MMPI: A Practical Guide” evens the playing field in cases involving the application of an MMPI test. Without an understanding of the results of these exams, an attorney can not challenge the claims of defense experts, who assert that they have "objective" evidence that the client is lying. Obviously, there may be occasions when defense experts have correctly interpreted the data from these tests. However, if you uncover one case in which a defense expert intentionally misinterpreted an MMPI study to inappropriately paint your client as a liar, the money ($13.63 at Amazon.com) and time invested in reviewing “MMPI: A Practical Guide” will have been well spent.

What patients can and should expect when pursuing a medical malpractice case.

PRESUIT INVESTIGATION

In New Jersey (where I practice), and in other states that allow parties to a lawsuit to engage in full pretrial discovery, when a plaintiff-patient sues a defendant health care provider, a medical malpractice case will go through several phases and will usually take several years to get to trial.

At the outset of malpractice litigation many states require a patient to serve the doctor with an Affidavit of Merit (AOM).  The AOM must be signed by a physician with credentials similar to the defendant doctor and it must state that after reviewing the pertinent medical records the expert believes (a) that the defendant doctor practiced medicine below accepted standards of care and (b) that this harmed the patient.  For this reason, before a lawsuit is filed against a physician, a patient's lawyer must obtain all of the medical records pertinent to the claim for the expert's review. 

In addition to the medical records, my office provides a reviewing expert with the relevant medical literature and any insight obtained from our own review of the patient's records. Why? In a perfect world, paying experts hundreds of dollars an hour would guarantee a thorough review of a case. Realistically speaking, however, because (a) physician experts have extremely demanding schedules and (b) experts feel compelled to complete their review of a case as quickly as possible (because they are usually charging an exorbitant hourly rate) experts tend to speed through medical records when reviewing a file.  Highlighting the important facts in the  records and providing an expert with up to date literature allows an expert's review to be more efficient and ensures that the expert will be in a position to familiarize himself with the nuances of the medical care provided to the patient.

The pre-suit investigation is often the most critical part of a medical malpractice case. If a firm does nothing more than provide an expert with a patient's medical records, they will not be in a position to evaluate their expert's review of the case. Moreover, there are other reasons why an attorney must become conversant with the facts related to a plaintiff's medical care and educate himself with the medical literature relevant to a litigation. When the case goes into suit, a lawyer will have to have a full command of these subjects. Every defendant in a medical malpractice case is a free defense medical expert consultant to defense counsel, and they have an obvious motive to give their attorney all the help they can.  A vigilant pre-suit investigation from the patient's attorney is the best tool to neutralize this advantage.

Commencing the Lawsuit

Once the pre-suit investigation of the claim is complete and an expert has signed an AOM, a lawsuit is started when the patient files a complaint with the court that spells out the pertinent facts and the allegations. Complaints describe, in very broad strokes, the care the doctor provided to the patient, identify those aspects of the care that the patient contends were negligent, and indicate how these mistakes harmed the patient.  Once the complaint is filed, the doctor is served with a copy of the filed complaint, along with a summons. At that point, a defendant physician will notify his malpractice insurance carrier that a lawsuit has been filed, and the carrier will hire an attorney to defend the physician in the lawsuit.

Medical malpractice litigation is a very specialized field of law. As a result, there are usually a handful of defense firms representing most physicians who are sued as in a single geographic area. If your attorney regularly litigates medical malpractice cases, the firm hired on behalf of a defendant doctor will know your attorney and have a good understanding of his professional reputation. Conversely, if your attorney does not regularly litigate malpractice cases and does not have an established reputation in this field, defense counsel will know this as well.

THE DISCOVERY PHASE OF A LAWSUIT

PAPER DISCOVERY RESPONSES

Once a defense attorney enters an appearance and files an Answer, your case enters the discovery phase of litigation.  Generally speaking, during discovery, all parties have an opportunity to investigate the merits of the other side's legal and factual position.  The first phase of discovery involves the exchange of paper discovery demands and responses.  Each side propounds interrogatory questions on the other side which are written questions that require written responses. Most attorneys also serve a demand for production of documents, which requires the other side to provide copies of all documents pertinent to the case. Finally, attorneys may propound a demand for admissions, which requires the responding party to affirm or deny the truth of a set of factual allegations. 

Your attorney will draft your paper discovery responses which you will then be required to review and supplement.  After you approve your discovery responses a finalized draft will be forwarded to defense counsel, with a certification page signed by you that indicates the answers and documents are true and complete.  All pertinent medical records and other items demanded by the defendants in discovery will be attached as exhibits to your paper discovery responses.

More often than not, defendant physicians do not provide complete and comprehensive paper discovery responses.  There are a variety of reasons for this, but one is that many attorneys who represent patients simply do not insist on this.  Obtaining complete and comprehensive discovery responses takes time and effort.  First, an attorney representing a patient must send a detailed correspondence to the physician’s attorney outlining why the doctor's discovery responses are deficient, and demand more information.  Assuming the doctor does not cure the deficiencies, a motion then has to be prepared and filed with the Court to compel more specific answers.  Often, the motion will require a court appearance. Many attorneys conclude that this process is too time consuming, especially since after paper discovery is exchanged, a patient’s lawyer will have an opportunity to depose a doctor and clarify issues in the doctor's paper discovery responses.

A good lawyer knows, however, that the purpose of discovery is not only to obtain information from the other side, but to require a defendant to provide a precise factual statement about the facts of a litigation which can be used at trial as affirmative evidence, or for the purpose of impeaching or contradicting a defendant doctor’s trial testimony. Only after a doctor takes a precise position in his paper discovery responses can these be used an impeachment device in later proceedings. Additionally, insisting on comprehensive and complete paper discovery responses enables an attorney to better prepare for depositions. 

DEPOSITIONS OF THE PARTIES AND FACT WITNESSES

After paper discovery responses are exchanged the parties will schedule depositions. During a deposition a witness is placed under oath and required to provide verbal responses to questions asked by counsel. Everything said during a deposition is taken down by a court reporter, and a written transcript of the testimony is created. At trial, a party’s deposition transcript can be read  directly to the jury. Additionally, an expert’s transcript and the transcripts from non-party witnesses can be read to the jury if a witness contradicts his deposition testimony on the stand at trial. 

Most of the time plaintiffs are depose first.  Before you are deposed you will meet with your attorney to prepare for that proceeding.  Your deposition will take place in a conference room, usually at your attorney's office. The attorneys representing all parties will be present. Defendant doctors have a right to be present, but they rarely attend. The attorneys who represent the doctor will ask you questions about the following subjects:

            (a)       The care provided by the defendants;

(b)       Your medical history before and after the incident that gave rise to the malpractice claim;

(c)       The injuries and disabilities that you suffered as a result of the negligence of the defendant and how these impact your life.

After your deposition takes place your attorney will have an opportunity to depose the defendant physician and any other health care providers who may have knowledge of facts related to your claim.  It is often difficult to schedule depositions of defendant physicians because they have very demanding schedules and courts will usually provide them with latitude because of this.  Occasionally it will be necessary for your attorney to file an application with the court compelling the deposition of the defendant if the deposition is rescheduled repeatedly.

The deposition of a defendant physician is obviously focused on the care provided to the plaintiff-patient. Nevertheless, this proceeding is not the time for a patient's attorney to “discover” the medical facts relevant to the case. By the time the deposition of a defendant takes place, a patient's attorney should have a full command of the facts and a complete understanding of the medicine. The goal of the deposition of the doctor should be to lay the evidentiary foundation necessary to prove that the doctor’s medical treatment of the plaintiff was below accepted standards of care and to lock the defendant into a precise factual position.

EXPERT REPORTS

After depositions are completed, expert reports are exchanged. Generally speaking, a patient will serve his expert reports first. Depending on the nature of your case, you will have at least one medical expert. If the liability and damages issues in your case span more than one medical specialty or there are multiple defendants in the case, you will likely have more than one medical expert who will write a report on your behalf. Additionally, if the medical malpractice of the defendant made you disabled, your attorney may hire an economic expert to provide testimony about your future lost wages.

Experts base their opinion on a review of (a) the pertinent medical records, (b) the relevant literature, (c) the paper discovery responses exchanged during discovery, and (d) a review of the deposition transcripts of all of the relevant witnesses. This is a very labor-intensive process. Nevertheless, in New Jersey and many other states, the court rules enable experts and attorneys to engage in a collaborative process prior to the issuance of expert reports and these activities are protected from disclose under the work-product doctrine. As a result, knowledgeable attorneys will provide guidance to experts in the preparation of their reports for the same reasons that attorneys provide guidance with respect to an expert's initial review of a case in anticipation of securing an Affidavit of Merit.

In medical malpractice cases, experts issue reports with a common format. The report will begin by listing the evidence that an expert reviewed. Next, the expert report will provide a factual chronology that highlights the important facts based on expert’s review of the evidence. The report will finish with a discussion of the expert's conclusions about why he believes a defendant deviated (or did not deviate) from accepted standards of care, citing to the medical literature on the subject. When the experts your attorney retains complete their reports, your attorney will serve them on counsel for the defendant physicians, and you will also receive copies.

DEPOSITIONS OF THE EXPERTS

After expert reports are exchanged, the parties will be provided with an opportunity to depose the experts. Customarily, a plaintiff's expert is deposed first. Your attorney will meet with your experts to prepare them for that proceeding. In my office, we insist on meeting with an expert at least a week in advance of his deposition so that the expert has time to digest what is discussed and so that the expert can utilize the information we provide in the meeting during his own pre-deposition preparations.

After your experts are deposed, your attorney will depose the defense experts. This is a critical part of a medical malpractice litigation. It is not unusual for my firm to spend as much time preparing for expert depositions as we spend preparing for trial. In addition to all of the medical research and factual review, background checks of all experts are undertaken. All relevant medical publications of the expert are reviewed prior to the deposition. Additionally, all available deposition transcripts of an expert are reviewed, so that we are in the best position to challenge the credibility and the science behind the expert's opinions.

THE RESOLUTION PHASE OF A MALPRACTICE LAWSUIT

SETTLEMENT DISCUSSIONS

After expert depositions are complete, the case enters into the resolution phase of the litigation. In New Jersey, a defendant doctor must consent to settling a medical malpractice case. If (a) a doctor consents to settle the case and (b) the doctor's insurance carrier authorizes a defense attorney to make an offer of settlement, the parties begin settlement negotiations. This may occur in a settlement conference before the judge the parties are assigned to for trial. It may also occur during voluntary mediation, or simply through informal conversations between counsel.

As a general rule, because the stakes are so high, insurance carriers do not engage in settlement discussions in medical malpractice litigations until after they have had an opportunity to evaluate how the parties and the experts perform during discovery. 

Obviously, your attorney has more experience than you do at evaluating the merits and value of a litigation, and he will provide you with guidance about what he thinks the settlement value of your case is. Ultimately, however, the decision about whether to resolve a case for an amount offered is the client's alone. You are free to reject your attorney's advice about whether or not to resolve a case. An attorney has an ethical obligation to advise you of every offer made, and he is ethically bound to abide by your decisions in the negotiating process.

TRIAL PREPARATION

If the parties cannot find common ground through settlement discussions, a case must be prepared for trial. Your attorney will prepare motions in limine regarding legal issues that will come up during the trial. Attorneys must also prepare other pleadings in the form of voir dire questions, proposed charges, a pretrial information exchange, and a proposed verdict sheet. On top of this, your attorney will meet with you and all of the witnesses who testify on your behalf to ensure that they are ready to testify at trial.

In addition to preparing pleadings and making sure that witnesses are ready for trial, in the modern digital age attorneys must also prepare demonstrative exhibits. Slides will be prepared to assist and keep the jury's attention during opening and closing statements. Medical records will be scanned so that they can be projected onto screens or televisions when defendants and their experts testify. Deposition transcripts and paper discovery responses are also scanned so that they can be used for impeachment purposes. At my office, we have software programs that enable us to digitally reproduce any document so that it can be projected onto a screen. Evidence is bar coded so that when a witness testifies we can call up relevant documents during a trial with a bar code scanner. If a witness contradicts a medical record or sworn testimony, in less than one second we can project the pertinent impeachment evidence on a screen while we are engaging in our cross-examination. Organizing all of this information so that it can be used effectively takes a great deal of planning and is very time consuming.

THE TRIAL

Trials can last several days and complicated cases will result in trials that last several weeks. In most instances it is best if the plaintiff is in court every day during the trial. Exceptions to this rule have to be made for clients who are catastrophically injured and are physically incapable of sitting in a courtroom.

Jury selection usually takes a day to complete, but can take longer in a case that will take several weeks to try. After a jury is selected, they receive preliminary instructions from the judge. Following this, all parties present their opening statements. After opening statements, the plaintiff patient presents his witnesses; preferably the fact witnesses are called first, followed by the expert witnesses. The defense will call their witnesses after the plaintiff completes his case. The parties will then provide the jury with their summations, the judge will charge the jury and then the jury will deliberate until a verdict is reached.

POST-TRIAL MOTIONS AND APPEALS

A case is not necessarily over when a jury returns a verdict. If the trial judge made a mistake on a legal ruling of consequence either party may move to set aside the verdict and request a new trial. Additionally, legal rulings of the trial court can be appealed. Frequently, when a physician loses a malpractice trial they will file an appeal and attempt to negotiate a settlement that is less than the verdict. Your attorney will provide you with guidance throughout this process.

More information about John Ratkowitz

H.R. 5 - The Protecting Access to Healthcare (PATH) Act - The Health Care Industry's Latest Attempt to Avoid the Financial Consequences of Epidemic Levels of Malpractice.

On Thursday, March 22, 2012, the House of Representatives passed H.R. 5, the Protecting Access to Healthcare (PATH) Act, a bill originally introduced by Representative Phil Gingrey (R-GA), which if passed into law will cap all pain and suffering awards in medical malpractice cases at $250,000. H.R. 5 also reduces the amount of attorneys fees that can be paid to a lawyer who represents a victim of malpractice. Of course, defendant health care providers still have a right to pay lawyers they employ to defend these cases any amount they wish.  The bill also seeks to impose draconian restrictions on patients' rights of redress against drug companies and medical products manufacturers who profit off of dangerous or misleading products in the marketplace.


The rationale for the proposed medical malpractice restrictions according to the sponsors of the bill is that jury trials in medical malpractice cases are "a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients."  Additionally, the authors of the Bill contend that the threat of a lawsuit "is a deterrent to the sharing of information among healthcare professionals which impedes efforts to improve patient safety and the quality of care."  Among the stated goals of H.R. 5 is to "reduce the incidence of defensive medicine and lower the cost of health care liability insurance."


It is impossible to argue that a one-size-fits-all pain and suffering award of $250,000 is a just way to make a victim of medical malpractice whole after he suffers tragic debilitating injuries. Under the circumstances, Representative Gingrey (a retired obstetrician who has been sued for malpractice three times) has taken a page out of Orwell's 1984,  and H.R. 5 is drafted as if came straight from the Ministry of Truth.  The bill is said to be designed "to ensure that persons with meritorious health care injury claims receive fair and adequate compensation." In actuality, H.R. 5 takes away a medical malpractice victim's ability to have a jury of his peers decide what a fair measure of compensation is.  Representative Gingrey contends that H.R. 5 will benefit victims of medical malpractice "by reducing uncertainty in the amount of compensation provided to injured individuals."  The only time that the $250,000 cap on damages will result in certainty, however, is when it limits a jury award that would have otherwise been higher. Somewhat ironically, the New York Times recently reported that the $250,000 cap is half of what Representative Gingrey settled his last medical malpractice litigation for, after he was accused of providing negligent care to a pregnant woman. 


Tort reform advocates have been attempting to shift the burden of medical mistakes from the health care industry to victims of negligence for years.  The argument is cloaked in self-righteousness: Victims' rights have to be curbed, and after this occurs, physicians will no longer be afraid to disclose errors. This will cause a change in the culture of medicine and allow medical errors to be analyzed and approached in a new more comprehensive way.  Unfortunately, medical literature published by doctors (not lawyers) and the recent history of the patient safety movement provide plenty of reasons to be skeptical of this trickle-down approach to safety. 

-I-

H.R. 5 will drastically restrict innocent victims' rights of redress in medical malpractice cases, while rewarding the health care profession with immunity for its failure to police itself. This is not only incredibly irrational from a public policy standpoint, it is also immoral because for the last ten years, an epidemic medical malpractice problem in the United States has resulted in hundreds of thousands of unnecessary deaths, and despite this, advances in patient safety have stalled and error rates have held steady.

In November 1999, the Institute of Medicine,  a branch of the National Academy of Sciences, published a study declaring that a threshold improvement in the quality of health care was urgently needed because medical negligence committed in hospitals in the United States was killing more people annually than motor vehicle accidents, breast cancer and AIDS. Kohn LT, et al, To Err Is Human: Building a Safer Health System, National Academy Press pg. 26 (1999). The impact of that study, and its "jarring" analogy that the annual number of deaths from hospital negligence would be equal to the downing of a jumbo jet every single day, "galvanized the public and health professionals and led to congressional hearings, media exposes, and millions of anxious patients." Robert M. Wachter, M.D. , The End of the Beginning: Patient Safety Five Years After 'To Err Is Human," W4 Health Aff (Millwood) Web Exclusives 534 (2004).

Twelve years ago, To Err Is Human announced that the health care industry was "a decade or more behind other high-risk industries in its attention to ensuring basic safety." To Err Is Human, supra, at 5. The report was so shocking in part because "silence surrounds" the issue of medical malpractice. Id. The goal of To Err Is Human was noble: to break the cycle of inaction in the health care industry. Id. at 3. Action was urged 10 years ago because doctors (not lawyers) finally declared that the status quo was not acceptable and could no longer be tolerated. To Err is Human argued that preventable errors could be reduced by designing safety into the health care delivery system. Id. To do that, a four tiered approach was advocated. The health care industry needed to

• undertake a national effort to create leadership, research, tools and protocols in the to enhance the knowledge base about safety;
•  identify and learn from errors through immediate and strong mandatory reporting efforts, and voluntary reporting efforts, with the aim of making sure the system is made safer for patients;
• raise the standards and expectations for improvements in safety through the actions of oversight organizations, group purchasers, and professional groups; and
• create safety systems inside health care organizations through the implementation of safe practices at the delivery level. Id. at 6.

In To Err Is Human, the IOM called for a 50% reduction in medical errors in five years, but ten years later it was clear that progress in the area of patient safety was still far short of that goal. Lucian Leape, et al., Transforming Healthcare, a Safety Imperative, 18 Qual. Saf. Health Care 424 (2009). Indeed, one commentator observed that "[s]hockingly modest progress has been made given the impact of the problem, how many people were made aware of it and how many efforts have been made to address it."  Howard Larkin, 10 Years, 5 Voices, I Challenge. To Err Is Human Jump-Started a Movement to Improve Patient Safety. How Far Have We Come? Where Do We Go From Here? 83 Hosp. Health Netw.  24a, 28t (2009). ''The current status of hospital safety systems is not close to meeting IOM recommendations." Daniel R. Longo, OblSb, SeD, The Long Road to Patient Safety: A Status Report on Patient Safety Systems 294 JAMA 2858, 2858 (2005).  Data from recent studies measuring safety progress suggests that "patient safety progress is slow, and cause for great concern." ld.

On Nov. 18, 2010, the New England Journal of Medicine published a study that attempted to quantify the impact of patient safety measures on in-patient hospital admissions. Christopher P. Landrigan, M.D. et al., Temporal Trends in Rates of Patient Harm Resulting from Medical Care, 363 New Eng. 1. Med. 2124 (2010). The authors specifically chose to evaluate the impact of patient safety efforts in North Carolina because that state showed a high level of engagement in efforts to improve patient safety. In spite of this, the study revealed that ''harm resulting from medical care was common, with little evidence that the rate of harm had decreased substantially over a 6-year period ending in December 2007." ld. at 2130. The review revealed that 25.1% of the patients receiving medical care in the hospitals surveyed suffered from medically induced harm. Id. at 2124-2125. Sixty-three percent of these medical mistakes were entirely preventable. ld. at 21. More recently, in April 2011, a study appearing in Health Affairs suggested that medical errors occurring in hospitals are ten times more common than previously thought.

It is difficult to imagine the lack of results in the last twelve years in the patient safety movement being permitted to occur in any other industry. If ten years ago jumbo jets were falling from the sky every day and we learned from a study (conducted by the airline industry itself) that the resulting individual tragedies were avoidable if air carriers implemented policies and procedures in a systematic way to promote safe practices, citizens would demand change and there would be bipartisan support for government intervention to stop preventable deaths. The idea that thousands of deaths already occurred because of air carriers' failure to follow safety standards would be considered utterly scandalous. You certainly would not expect people to stand idly by while the planes continued to full from the sky every day for ten more years. If the planes did keep falling, nobody would dream of suggesting that we should reduce airline accountability to the victims who were dying because of preventable errors.

-II-

Given the last twelve-year history of the patient safety movement, it is irrational to suggest that providing more immunity to the health care industry will result in "an increased sharing of information in the health care system which will reduce unintended injury and improve patient care."


Advocates of tort reform hypothesize that the one of the reasons that medical malpractice is such a pervasive problem is that the health care industry is unable to examine errors in a systematic way because doctors are afraid to admit when they make mistakes for fear of being named as a defendant in a lawsuit.  The theory is that if the financial consequences of medical mistakes are reduced, doctors will be more honest about admitting them, and this will lead to more data about errors, which will be analyzed and evaluated. Then, a "systems approach" will result in a safer health care sector.

The unsupported optimism that immunity will eventually result in a more honest approach to medical mistakes completely ignores the fact that physicians have always been required to be honest about medical mistakes, but have historically refused to act this way. Under the American Medical Association Code of Ethics, physicians have an ethical obligation to advise a patient when they commit consequential acts of medical malpractice when "a patient suffers significant medical complications that may have resulted from the physician's mistake or judgment." Am. Med. Ass'n Code of Medical Ethics A-02 Edition, E-8.12 Patient Information, 77. Similarly, the American College of Physicians Ethics Manual mandates disclosure of errors if disclosure of this information is "material to the patient's well-being." Lois Snyder & Cathy Leffler, Ethics Manual, Fifth Edition, 142 Annals Internal Medicine 560, 563. Finally, the Joint Commissions on Accreditation of Health Care Organizations requires that patients be informed of unanticipated results that differ from the expected outcome in a significant way when a medical error occurs at a hospital. Joint Comm'n on Accreditation of Health Care Orgs., Revisions to Joint Commission Standards in Support of Patient Safety and Medical/Health Care Error Reduction 12 (2001).

Disclosure of medical errors is not only ethically mandated, literature supports that it is consistent with the fiduciary nature of the physician-patient relationship, since in most instances, disclosure of errors will benefit a patient. C.J. Wusthoff, Medical Mistakes and Disclosure: The Role of the Medical Student, 286(9) JAMA 1080, 1081 (2001). Disclosure helps gain the cooperation of a patient who has been harmed by an error. Id. Further, understanding the cause of unexpected problems can relieve anxiety about recovery or complications. Id. Finally, some commentators have suggested that since patients need information about errors to make decisions about their medical care, disclosure of malpractice is part of a physician's duty to provide a patient with informed consent. Thomas H. Gallagher, Wendy Levinson, Disclosing Medical Errors to Patients: a Status Report in 2007, 177(3) Canadian Medical Association Journal 265 (2007).

In theory, physicians agree that they have an ethical obligation to disclose medical errors. One study suggests that between 70 and 90% of the physician population believes that doctors should disclose errors to patients. Kathleen M. Mazor et al., Communicating with Patients about Medical Errors, 164 Archives of Internal Medicine 1690, 1692 (2004). In another study, 97% of the faculty and resident population surveyed indicated that they would disclose medical errors that caused minor harm, and 93% indicated that they would disclose an error causing major harm. Lauris Kaldjian , et al. Disclosing Medical Errors to Patients: Attitudes and Practices of Physicians and Trainees, 22(7) J Gen Intern Med 988-96 (2007).

Regrettably, while physicians are ethically obligated to inform their patients of consequential medical malpractice and studies suggest they intellectually support this principle, theory has not translated into practice. A study revealed that only 24% of residents surveyed reported the medical errors they committed to their patients. Albert Wu, et al. Do House Officers Learn From Their Mistakes? 12 Quality & Safety Health Care 221, 224 (2003). Another study estimated that nationwide, physicians are only disclosing errors to patients about 1/3 of the time. Robert J. Blendon et al., Views of Practicing Physicians and the Public on Medical Errors, 347 New. Eng. J. Med. 1933, 1935 (2002).


Doctors have always been ethically required to disclose medical errors, partially because it is a means to ensure good care.  That has not happened though.  Moreover, since To Err Is Human was published twelve years ago, saving 1.2 million lives was not enough incentive to cause error reporting systems to develop and preventable errors to be analyzed.  Under the circumstances, it absurd to suggest that (a) error reporting will increase and (b) a safer health care system will evolve once the impact of limiting malpractice victims' right of redress trickles down through the health care system. 

-III-

 Attempts to justify restricting the rights of medical malpractice victims as a means to decrease the cost of "defensive medicine" are misplaced because (a) the health care industry vastly exaggerates the problem of defensive medicine,  (b) other factors have increased physicians' propensity to order more diagnostic studies and make additional medical referrals, and (c) studies have repeatedly shown that capping medical malpractice damages does not impact how doctors practice medicine. 

Those who advocate tort reform often point to the problem of defensive medicine as a justification to limit the right of redress of victims of medical malpractice. The argument is that the “pervasiveness of malpractice litigation" causes health care providers to “order tests or procedures in excess of their actual need to protect themselves from the risk of lawsuits.” Tara F. Bishop, MD, Alex D. Federman, MD, MPH & Salomeh Keyhani, MD, MPH, Physicians’ Views on Defensive Medicine: A National Survey, 170 Arch Intern. Med. 1081 (2010). Accordingly, malpractice litigation is seen as creating a problem of over-deterrence, with lawsuits causing doctors to take more precautions than they otherwise should when they treat their patients.

Doctors  certainly think  the  threat  of malpractice causes  them  to be excessively cautious. Studies  surveying doctors for the  last 30 years  reveal  that  anywhere between 21%  to 98% admit  engaging in  defensive medicine. J. William Thomas  et al., Low Costs of Defensive Medicine, Small Savings from Tort Reform, 29 Health Affairs 1578-1584  (2010).  Nevertheless, it is hard  to reconcile physicians’ perception that  they  are  acting  in  an  overly  cautious manner with  reality.  Although the last few  years have  seen an  escalation in the  discussion about  the  costs  of defensive medicine, over-cautious behavior is not  evident in outcomes because medical  error rates have held  steady. Christopher P. Landrigan,  M.D.  et  aI., Temporal  Trends in Rates of Patient Harm Resulting from  Medical  Care,  363 New Eng. J.Med. 2124 (2010).

Bias is one culprit here, as some commentators have pointed out: “Because many physicians are attuned to defensive medicine as a problem, and their professional organizations agitate prominently  against it,” studies that attempt to quantify the scope of the problem of defensive medicine by  surveying physicians are prone to a “socially-desirable response bias.” David M. Studdert, LLB, SeD, MPH, et al., Defensive Medicine and Tort Reform: A Wide View, 25 J. Gen. Intern. Med. 380 (2010).

In addition to the problem of bias, surveying doctors to attempt to determine whether the threat of a medical malpractice lawsuit causes over-utilization has other inherent defects. First, there are many other causes for profligate testing in medicine, including: 1) the public culture of entitlement; 2) the expectation of immediate and perfect results; 3) the extraordinary increase in diagnostic and treatment options today; and 4) growing specialization and fragmentation of care. Marcel Frenkel, M.D., M.B.A., Consensual Medicine and the Therapeutic Partnership: Reducing the Costs of Defensive Medicine and Litigation, 25 J. Med. Prac. Mgmt. 78 (2009). Additionally, managed care contributes to over-ordering because it requires faster analysis and decisive conclusions. Id.

Studies that have attempted to quantify the costs of defensive medicine by looking at the impact that tort reform has had on health care savings have obtained inconsistent results. For example, while some studies have found lower health care costs in states with tort reform, others noted a weak relationship between tort reform and health care savings. Still other studies found no relationship at all. J. William Thomas  et al., Low Costs of Defensive Medicine, Small Savings from Tort Reform, 29 Health Affairs 1578, 1579 (2010). These varied results have been attributed to the fact that researchers invariably focus on limited sets of clinical conditions or specialties. Id. at 1579.

In 2009, a broader and more comprehensive study was undertaken to ascertain the impact of tort  reform measures on health care costs by examining Medicare spending in states that adopted tort reform. Frank A. Sloan & John H. Shadle, Is There Empirical Evidence for ‘Defensive Medicine’? A Reassessment. 28 J. Health. Econ. 481 (2009). The study concluded that its analysis, and those of previous studies, suggested that contrary to statements in the media, caps on damages and the abolition of punitive damages did not have a significant impact on the reduction of payments for the studied Medicare services. The researchers’ overall conclusion was that “tort reforms do not significantly affect medical decisions, nor do they have a systematic effect on patient outcomes.” Notably, these results meshed with the Congressional Budget Office’s estimate that if tort reform were enacted in the form of a $250,000 cap on noneconomic damages, a $500,000 cap on punitive damages and a decrease in statute of limitations, the savings from a combination of: 1) decreased use of services from less defensive medicine; and 2) lower malpractice insurance premiums would be merely .5% of the annual national expenditure of health care. Cong. Budget Office, Letter to Honorable Orrin G. Hatch, U.S. Senate, Oct. 9, 2009, available at www.cbo.gov/ftpdocs/106xx/doc10641/10-09-Tort_Refrm.pdf.

Finally, at face value, the defensive medicine argument is premised on an outdated and paternalistic view of the physician/patient relationship that is contrary to law. In most circumstances, the law  compels physicians to empower their patients to make consequential medical decisions by requiring a doctor to provide a patient with informed consent. Simply put, it is a mistake to assume that reduced exposure to liability will allow doctors to be less cautious, because doctors are no longer the only decision makers in this process.

-IV-

By capping recovery, H.R. 5 will inadequately and arbitrarily compensate victims of severe incidents of medical malpractice and simultaneously make smaller medical malpractice cases economically impossible to pursue. This later problem will have a disparate impact on the poor and elderly. 

It goes without saying that an arbitrary cap on non-economic loss damages will negatively impact victims of medical negligence injured the worst. In addition to this, damages will make cases for many victims injured less severely by medical malpractice financially unviable.  RRMedical malpractice case usually require a plaintiff's attorney to "front" expenses.  Even the most simple cases  this amounts to at least $25-$30,000. The costs are significantly more if the case goes to trial.  More importantly, these cases also almost always require a malpractice victim's attorney to invest hundreds of thousands of dollars in attorney time to prosecute, because they deal with complex issues of science, require extensive discovery and significant preparation during every stage of the litigation process and they are always vigorously defended. Assuming a contingency fee of 33%, a case usually has to have a potential financial recovery of over several hundred thousand dollars for an attorney to consider it financially viable to pursue. Therefore, if damages in these cases are capped at $250,000, unless a patient suffers a significant future loss of income as a result of a medical mistake,  the overwhelming majority of medical malpractice cases will no longer be financially viable for attorneys to prosecute.  Make no mistake about it, capping malpractice damages in the face of a permanent life-altering injury at $250,000 will hurt nearly every medical malpractice victim. Nevertheless, since a significant future wage loss will become the new polestar of whether a malpractice case is financially viable,  H.R. 5 Hwill disparately impact the elderly, who do not have a lengthily work life expectancy, and the poor, who will not show a dramatic future wage loss.

CONCLUSION

Juries sit on cases every day in the United States and determine whether accountants, attorneys, architects and engineers commit professional malpractice. Indeed, we rely on our citizens to determine whether some criminals should be sentenced to death. H.R. 5  assumes that juries are incapable of deciding the appropriate measure of compensation for people who have been injured by a health care provider's negligence.  Notably, H.R. 5 does not posit that people are ill-equipped to deal with complex medical issues, and it does not suggest that a jury cannot determine whether a medical provider made a mistake, it simply assumes people aren't smart enough to calculate what amount of damages should be awarded to patients injured in these circumstances. The fact is that juries make this identical determination in virtually every significant civil case that is decided by the courts, and no cogent explanation has ever been offered about why juries are uniquely incapable of making these kinds of calculations in medical malpractice trials.

Like every other business industry, the health care industry is influenced by a profit motive. Promoting safety is time consuming and expensive. Historically, lawsuits have actually helped advance safety measures in industries reluctant to take such initiatives on their own. In the face of a medical malpractice problem that by its own admission has reached epidemic proportions, the health care industry failed to take significant measures for the last twelve years to stop hundreds of thousands of deaths. A reasonable analysis leads to the conclusion that H.R. 5 will only exacerbate these problems.