Hat Tip to Crooks and Liars; ProPublica When Attorneys Refused My Medical Malpractice Case”. I wrote on this topic one time before. What attracts me to it again is newer data as presented by Publica, which expresses the same finding I noted before. Attorneys will not take a case unless they can win and make a living. The investment of $50,000 to $100,000 by an attorney to litigate a malpractice case presents a high economic hurdle.
Many well-meaning people believed the words of President George W Bush;
“The health care system looks like a giant lottery. That is what it looks like these days with these lawsuits and somehow the trial lawyers are always holding the winning ticket.”
In reality, far more people do not get their day in court to rectify a wrong done upon them through accident or negligence by doctors, hospitals, or the industry. Attorneys are the gatekeepers to whether a plaintiff receives their day in court.
Before taking a case, “personal injury lawyers in both reform and non-reform states take into consideration the same three factors;
• the monetary value of the injury (damages);
• the factual components of the case, including their assessment of their ability to demonstrate wrongdoing or negligence on the part of a doctor or product manufacturer;
• their estimation of how the potential client will be evaluated by a jury (“likeability”).
Across cases, each of categories can vary dramatically in what impacts the decision; damages can be either significant or trivial; liability can be clear, difficult to prove or even nonexistent; and lawyers decide whether clients are perceived as “likeable” or “unlikeable” by a jury.”
The decision-making criteria identified above will vary in significance by whether the state is a reform state with caps on rewards or a non-reform state; however and in the end, the decision still pivots on whether an attorney can win the case and recoup his investment. Mary Nell Trautner’s paper examines the differences between reform and non-reform states; “Tort Reform and Access to Justice: How Legal Environments Shape Lawyers Case Selection”. By reviewing such non-reform states as Pennsylvania and Massachusetts, reform states Colorado and Texas and within the select cities of Philadelphia, Boston, Denver and San Antonio of each state; the author then assessed how attorneys from the selected cities within each state come to a decision as to whether to accept a case.
Likeability appeared to be important criteria. The closer the match to the jury pool, the greater the tendency a jury might like them. Understand though, there are always 12 different opinions making up a jury; consequently, it is always better to settle than go to trial. “A ‘perfect” personal injury case, then, would have unquestionably significant damages, strong and clear liability, and a ‘likeable’ client” to which a jury can identify.
Given plaintiffs and the cases they bring are not perfect, lawyers must contend with the various legal, social, and political factors of the environments in which they practice deciding which cases to take or not take regardless of whether the case has legal merit.
Case Selection in Non-Reform States:
Attorneys in non-reform states such as Pennsylvania and Massachusetts rely more on the likeability of the potential client after the damages portion of the case has been established.
“If the clients are really good, I know they’re good, I like them, but not enough evidence pops up…I’d probably take that case…because the case is easier to be received by the jury if they like the people. They’re more willing to give the benefit of the doubt if the client is real likeable.”
85% of the attorneys surveyed said they would take the case whereas 61% of the same attorneys said they would reject a case if the client was not likeable regardless of legal merit. Likeability can extend to paying taxes, past record, race, etc.
Case selection in Reform States:
Attorneys in reform states such as Colorado and Texas stress the strength of the case as being more important than likeability and after the damages/wrong doing has been established.
“I don’t care how likeable the person is, because juries don’t like plaintiffs anyway, and so a likeable plaintiff is not going to carry a weak case. A strong case is much more likely to carry a less likeable client. You can’t go in with a weak case.”
75% of the attorneys in Reform states said they would accept a case where there was clear liability even if the client was not likeable. 62% of the attorneys rejected cases where the liability was not clearly established.
In either reform or non-reform states, the decision to take or not take a case does not indicate there was no wrongdoing. The selection was based upon likeability or the strength of the case after other factors in the selection process were established. Furthermore, likeability does not go away in the courtroom either. Juries which do not like a plaintiff’ mannerisms, physical characteristics, etc. will still focus on the plaintiff and determine whether they are worthy after the case has been established. In which case, the jury may award less to a plaintiff they do not like or nothing at all. An attorney who accepts such a client runs the risk of losing the case unless the strategy is to settle before a trial.
Insurance companies, doctors, and some states have launched publicity campaigns calling for tort reform proclaiming lawsuits as frivolous, increasing the cost of healthcare and/or business, or driving doctors and/or businesses out of state. Without commenting directly on the merits of the points made in these campaigns, potential jurors carry these points against liability or malpractice suits into the courtroom. Attorneys going into the courtroom must consider these factors also with a particular need to do so in Reform states.
Healthcare Insurance companies, medical associations and the healthcare industry have focused on tort reform as one of the biggest drivers of the steadily increasing cost of providing healthcare. They point directly at greedy lawyers, generous juries, and people who bring frivolous cases to trial. In reality, all of the cases make up a fraction of the total cost of healthcare. The income and profit motive driven attorneys screen out cases in either one manner or another leaving only those which are winnable. Attorneys do not take unwinnable cases as they can not afford being stuck with the cost. As referenced here Patient Harm: When An Attorney Won’t Take Your Case and above, there are many reasons why an attorney will not take a case and some are the most trivial such as age, etc.
One of the biggest drivers of malpractice lawsuits are the mistakes made in hospitals that go unacknowledged and/or uncorrected. Some hospitals such as University of Michigan, University of Illinois, and Stanford University have started to meet with patients and admit to making errors. This goes a long way towards soothing the anger many feel from being the victim of errors. The PPACA has within it a forced readmission at hospital cost of patients who are not fully cured and suffer reoccurrence of a disorder. This takes the financial burden off of the patient. What has not happened is the correction of reoccurring mistakes by some doctors as pointed out in a 2007 Public Citizen paper.
“The vast majority of doctors – 82 percent – have never had a medical malpractice payment since the NPDB was created in 1990.” The Great Medical Malpractice Hoax Public Citizen January 2007 The remainder of the doctors have been left without oversight as to why the mistakes or errors. Fixing the issues would directly impact the number of lawsuits.
Are the lawsuits for malpractice frivolous and commonplace? If we are to believe the manner in which attorneys screen potential cases, the answer would be no. The numbers of lawsuits is a result of the screening process which would suggest they are legitimate. Is there an increase in the numbers of lawsuits and subsequent payouts? Public Citizen would say no. As I suggested above, there are in which to decrease lawsuits, own up to errors and better oversight of doctors who make more errors than others.
When An Attorney won’t Take Your Case Marshall Allen and Olga Pierce
Ten Patient Stories . . . ; Marshall Allen and Olga Pierce
Tort Reform and Access to Justice: How Legal Environments Shape Lawyers Case Selection Mary Nell Trautner, September, 2011.