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.

I was reading around the WSJ today, and came across this article which seemed to screw “post on  Malpractice.”

Obviously the fact that the case deals with Malpractice of both lawyers and doctors made it a “must post” article.  Additionally, the fact that for once, an article between law and medicine doesn’t put me against Kurzman in a battle of “good vs. medicine” rather, we both look like garbage.

As sad as this scheme is, it isn’t at all hard to believe.  I’m sure at some point I’ve joked about heard people talk about similar “schemes.”  What is terrible is that these people not only did it, but did a lot of it (and a lot of people were doing it!)

That said, how on earth can the DOJ allow this?  I know doctors and lawyers protect their own, but seriously, aren’t there some people in both professions that want to clean up fraud and make the profession better? 

Kurzman’s post provides an interesting opportunity to discuss and relay some random information that I have picked up thus far this semester.As Kurzman said, I don’t really have much of an interest in personal injury work because, although owning a Gulf Stream is nice, not having to explain to your friends how you sleep at night is even better.That said, whenever I hear random tidbits about Med-Mal or PI cases in class, I try to jot them down because the Poly Sci/debater in me finds them interesting. Here are a couple of somewhat relevant somewhat interesting tidbits I have picked up in classes and from speakers.

 First, by and large, jury’s like doctors. This makes sense if you think about it – jurors are people that get sick, those same people go to the doctor, and they trust their doctor to help make them feel better. This plays out in an interesting way. The tendency is for jurors to take the doctors appraisal or word as more credible/believable. An interesting related note though is that jurors also feel bad for people that suffer terrible wrongs – especially the death or serious injury of theirs children, and tend not to hesitate to award large damages in these cases.So what we have as a starting point is that jurors tend to believe doctors, but also tend to award large damages when things go wrong, especially to certain populations.

Next, one of the most plaintiff friendly courts in the country is in Illinois, where Kurzman goes to school. Madison County, a poor area with mostly elected judges is among the most plaintiff friendly courts anywhere in the nation, so my first bit of legal advice to Kurzman would be, practice north of I-88.The econ student in me feels the need to look at the plan that Kurzman has pitched and talk about the positives and negatives.The positive is clear: It saves the hospital time and money in litigating malpractice claims and keeps doctors from making enemies out of their patients.

Similarly, potential plaintiffs are spared the stress of a lawsuit and don’t have to cough up the 1/3 of their award in the form of a contingency fee. The ideal of this system is clear: Assume a world in which each injury has a fair and logical figure (this is somewhat of an abstractioin, so work with me here). This figure represents what would be considered the “most fair” settlement to the patient taking into account all factors. If we take this figure, and deduct 1/3, we get the amount the that the patient would actually receive in their pocket. If we take this figure and add the cost of settling the lawsuit, we get what the suit will cost the hospital. Everything in between these two numbers represents the area within which both parties would be better off settling without the held of lawyers. Let’s take an example:Lets say that a hypothetical injury – YellowSubmarineitis has a fair settlement value of $100K. A patient settling would receive about $66K and the hospital might spend 12K to defend the suit (lets say its really complicated and outside counsel needs to work 20 hours or so on top of other fees). Any settlement figure greater than 66K but less than 112K offers both sides a better deal than litigating, so any settlement within this window is in the best interest of both parties and should facilitate the type of agreements that Kurzman favors.At first glance (and I confess this is a somewhat back of the envelope analysis that I am doing as I haven’t sat and thought about the issue for very long) I can only see one obvious problem.

 The problem I can foresee is that the hospital comes from a distinct negotiating advantage. The hospitals negotiation is represented by its in house counsel (or risk manager or similar position) who not only understands the legal issues involved, but is also a repeat player. Repeat players are at an inherent advantage in these types of negotiations (and future litigations) since they have some reconceived concept of both the likelihood of success at trial, the cost of tying the case, and the potential value of lawsuit. This isn’t a major issue for a small practice, but for a large hospital with full time legal staff, the advantage can be very large. Let’s return to our hypothetical injury. Suppose that the typical YellowSubmarineitis case that goes to trial returns a jury verdict at or around the ideal value of 100K. Knowing this, the hospital has a pretty good idea of the window in which it is negotiating and can avoid long-term losses from negotiation. If the patient demands 180K, the hospital knows it is in their best interest to turn the offer down. If the patient asks for 80, they know they are in a good place, and can negotiate knowing they have already saved.The patient on the other hand has little way of knowing these things. 60K is a lot of money to a lot of people, and perhaps if the injury is not too large a patient would agree to this amount, which represents a net loss for them for no reason other than the fact that they were not represented by counsel.

Most people trust their doctors and don’t want to extract their “pound of flesh” and MAY (not will but may) be willing to take some form of earnest money in exchange for waiving their right to a claim when they could otherwise receive more.Defense side advocates (of which I generally am one) can easily claim that this is a net positive – people get what the feel is enough, not what juries say or lawyers negotiate. This is of course a fair statement, but it seems like one sided logic – the patient getting less than they would otherwise pocket (even after attorney fees) is ok and evidence of fixing a broken system, but does the hospital ever pay more than they would otherwise expect? Doubtful. This is one of the reasons we have legal counsel in these situations – to eliminate the massive advantage that repeat players enjoy. Perhaps the hospitals always offer settlements within the mutually beneficial range – perhaps but doubtful. Perhaps this system represents giving people what they feel is fair and not what a jury says is right – a fairly compelling argument, even if the sacrifices are decidedly one-sided.Regardless of what the Personal Injury bar says, I must say this is an idea that seems long overdue. This idea seems to rest on a sound logical foundation, and from the point of view of the two parties involved, I think this makes great sense, but I do worry for the overall equity of the system – then again, something has to be done to bring medical costs back into check, and this certainly looks like a promising start.I hope some academic picks up this idea and runs with it. I am curious which side is benefiting more from these settlements and if they are almost universally in the “mutual win” territory.

Law: Tuition

July 20, 2007

Today hurt.  Not that kind of pain that you get when you get your finger caught in a car door or feel your elbow give up when you are throwing a softball, but that other type of hurt.  The type of hurt that can only come from realizing that you could have bought a nice car for the amount you just spending paying for ONE SEMESTER of school.

 Unlike my friend Kurzman, I did not receive a cushy scholarship to attend law school, partially because I didn’t deserve one, and partially because creating more attourneys is not considered to be a benefit to society the way additional doctors are.  For an interesting follow up, read this article  (all credit to ATL for this one) about a lawmaker trying to cut law school funding.  He has an interesting point in my opinion. HOW DARE THEY THINK THAT!  (Please note, the last sentence was completely sarcastic).   

 So back to the point.  Today I paid my first semesters tuition (and almost choked when I sent the funds transfer), but I guess that means I am one step closer to becoming a real law student. 

Somehow, paying my bill calmed my nerves.  I now feel like this whole process if for real and that in a month I really will be a law student, not just a college graduate talking about being a law student.

In closing, to the person up north trying to cut state funding, more power to you.  Why should the government be subsidizing education for people who intend to earn a large return on their time.  If the government in cheese-land really wants to do something to benefit the legal profession, they should start a state sponsored loan repayment plan for people working in the public interest funded by cutting the subsidy to UW-Madison.

Of course, there is no way the subsidy will actually be cut, but I agree with this guy that it should (although his reasons are rather dubious).