Law: Defending My Profession

January 14, 2008

So my first plan for tonight was to write an article celebrating the end of finals.  Never fear fans, that article is soon to come.  In light of the incredibly interesting article that Kurzman posted earlier, I thought I would take a few minutes to post  response. 

 First of all, I should echo the idea that when I read about the legal industry or lawyers, I tend to get defensive, unfortunately, unlike doctors, it seems my professions flaws are often less defensible. That said, I don’t see any problems with the waythe legal system played out in the case at hand, lets consider some of the element that may be pointed to as “faults”. 

First, no lawyer would take the case.  Ok, so I totally see how the outside looks at this, “She was wronged but those slimy lawyers are only concerned with profit, so they won’t help her.”  Look guys, I understand that we are a part of a profession, and as Danny M. P.C. likes to say “we have a monopoly on the legal system,” so its not that I don’t see that side, I do.  The thing is,when you tell a malpractice lawyer he should take a case like this, what you are really saying is “Look buddy, she deserves help, so take money out of your own poket and give it to her.”  In theory, whoever represents here is going to front their time with no garantee of payment.  Then they are going to pay her filing costs.  Then they are going to pay the other fees related to trial. This is a Malpractice case, if I remember correctly from gym class torts, that means that a medical expert is REQUIRED.  That means a medical expert is going to have to be paid, out of the lawyers pocket.  Lets be really conservative and say an hour in court (he will almost certainly bill an hour minimum in court) plus a few hours to prepare.  Lets say 5 hours total at an extremely conservative $500, thats $2,500, plus another $500 or so in court fees, thats $3000 out of his pocket, assuming he doesn’t have to pay a dime in legal research, staff fees, or anthing else, all with zero return on his time.  Now we go to trial, and it is a complicated trial.  Overall he puts in perhaps 40 hours on the case.  They go to trial, and if he is lucky he wins $50,000.  Assuming a standard 1/3 that gives him about $16,500 minus $3000 or so, so he makes about $13,500.  Not bad for 40 hours work right?  Now lets say she doesn’t win.  He gets nothing.  Lets say that he can win about 50% of these cases, that means that his expected value for a case like hers comes out to less than $90 per hour.  Or, he can take another case for somebody who believes they are hurt, helping them instead, and earn an expected value much higher.  What would you do?  Think of it like this.  You are going to paint a fence.  There are two fences of equal length and height.  One person offers you $40 to paint it. Another offers you $200, which fence would you paint?  Why is it that we can act in our self interest but these lawyers cannot.

2.  Why aren’t we blaming the doctor?  I see two possibilities.  Possibility one, this was a tough surgery for which there are risks and the doctor shouldn’t be held liable.  Fair enough, I can definately respect that.  Surgery is a skill very few people have, we are better off as a society because people have the skill, if they make a mistake that isn’t gross negligence, we aren’t outraged by their conduct.  I can respect that.  Seriously, if thats the policy decision we want to make, I think its great.  BUT lets make it understanding what that means, some patients will have bad things happen and not get compensated.  That appears to be what MAY have happened here.  Not all bad results entitle someone to an award.  It appears to me that there was doctor’s error here, but I don’t know anything about the surgery and even if I did, I wouldn’t understand it.  If you think this woman should get money, then the outrage should be “hey, doc, why haven’t you coughed up the cash, not “hey lawyer, why aren’t you taking the case?”

3.  One way professional responsibility.  It seems to me that this is a case of one person acting in good faith and he other not.  This women is attempted to treat the medical profession as a profession and treat a fellow professional with respect, he is refusing to pay and not picking up the cost of surgeries to fix the problem.  Many lawyers (including the type I hope to be) charge by the hour, I don’t have a problem with that, but I think a lot of the outrage here is the result of the fact that the doctor doesn’t seem to be dealing in good faith.

4.  Mike’s Plan:  I think the plan Mike supports is good. Fix the problem, treat the patient like any other service provider that made a mistake would, and attempt to reduce problems by negotiating in good faith.  This seems lik a case of the medical profession needing to police their own.  Failing that, why are we imposing standards on lawyers we wouldn’t want to live up to ourselves?

5.  Small claims, small skills.  This woman went to a Malpractice lawyer.  CNN likely called a high end malpractice lawyer.  If this woman really wanted to be vidicated, she would perhaps find a way, it just wouldn’t be convenient.  Low desirability work required increased rewards, thats just the way it works.  Some possibilities would including finding a recent graduate of a non-top-tier school thatis looking for some ways to make money and build skills (she would almost certainly have to front the fees herself, but fair is fair), find someone willing to take the case pro bono, or she could agree to some unique fee structure (perhaps a larger contingency fee a flat number amount to the lawyer if he wins, or a promise to pay AT LEAST a certain amount with a contingency fee possibility. )  I don’t know if any of these are used, or even legal, but when your claim is small and difficult, you have to try new paths.  People don’t have a RIGHT to have someone press their claim automatically with no cost or risk to them.  Sometimes the payout just isn’t worth the amount of hours that are needed. I want to build an exact replica of US Cellular field as a swimming pool, but you know what, it just not worth it.  I don’t mean to make light, I mean to say, sometimes the use of people’s services aren’t cost more than it is worth, this appears to be one of those.

Perhaps this is a need for the profession to regulate itself.  Perhps we are so used to a feeling that a harm is entitled to relief regardless of how it happens that we forget bad life sucks.  Perhaps there is some third solution, but I don’t know what it is.  This got really long, I’m going to stop, relax, and then come back to post about my last exam.

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