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Million-dollar medical malpractice verdicts have doubled since 1996. They now make up 8 percent of all malpractice claims actually paid. This, at the same time that defense verdicts remain the norm and the number of lawsuit filings has actually fallen somewhat. Why? The quick — and partially correct — answer is that the cost of health care has skyrocketed. If a three-year-old must breathe on a respirator for the rest of her life, which is expected to last at least 25 years, she’ll need a bigger award to cover the cost of that care. But the truly big verdicts are due to something else. It’s called a paradigm shift. Changes in the law, tools available to plaintiffs lawyers and the attitudes of potential jurors have altered the playing field for doctors being sued. But the doctors don’t seem to have caught on. Instead of changing how they approach litigation, doctors want to cap malpractice awards. Senate Republicans on Capitol Hill recently failed to get enough votes to break a mainly Democratic filibuster of just such a bill. The proposed legislation, which has already passed the House, would cap pain-and-suffering damages at $250,000 and limit punitive damages to $250,000 or twice the compensatory damages for economic loss, whichever is greater. Of course, that loss was not the end of the damages cap. Doctors, hospitals, insurance companies and tort reformers will keep pushing it. But their effort is a mere bandage for a serious wound. It won’t cure the medical malpractice crisis. Big verdicts will keep getting bigger until doctors face what’s really going wrong in court. • Plaintiffs’ lawyers have learned to present cases that are built on anger. Juries don’t award big verdicts out of sympathy, although doctors still think that’s the reason. Instead, over the last 10 years, jury consultants have taught plaintiffs’ lawyers to look for a reason to get mad. Lawyers build their case around the question, “What is it about the medical care in this case that makes you angry?” Consider just one award last year in rural South Carolina — $2.2 million in compensation, plus $15 million in punitives. This award came in a state where the average payout is about $80,000. The doctor had mishandled a surgical procedure that alleviates chronic heartburn, a procedure that he was not fully qualified to perform. He then mishandled repair surgery, failed to seek another doctor’s advice and failed to transfer the patient, leaving her severely handicapped. Here’s how a juror explained the verdict: “We wanted to say to the medical profession that we don’t want these kinds of people practicing medicine.” • Lawyers have learned to put science first in explaining the standard of care. Trial lawyers demystify medicine by explaining the science simply, then adding in the law. Doctors who fail to have a science-based answer to defend themselves look like they’re hiding behind the law. Here’s what the jury hears: “Ladies and gentlemen of the jury, these are the forceps. When a doctor puts them around a baby’s head to assist delivery, he’s supposed to put them this way, not this way, because that will crush the baby’s skull or cause blindness. That’s all the science we are going to talk about in this case. Nothing complicated. Nothing technical. It’s just basic science — the same that applies everywhere forceps are used to deliver babies. That’s all this case is about. Oh, by the way, the proper method of using forceps has a legal phrase to describe it. It’s called the �standard of care.’ “ • It’s easier to find medical explanations and experts these days because of the Internet. Standard-of-care information pours off the Web. A nurse consultant can find the best medical literature and the names of the best experts simply by spending a few hours online. The chief reference for medical standards and guidelines, the 2002 Healthcare Standards Directory, is available online and is updated daily. And once found, experts are more willing to testify for trial lawyers who have really done their homework, understand the medical issues at stake and are not just looking for a talking head. All too often, doctors walk into depositions or court and get zapped by medical literature they didn’t know anything about. In some cases, the expert who produced that literature will be testifying against them. • The much-discussed Daubert ruling has now come full circle. The 1993 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, told judges to act as “gatekeepers” to keep out marginal or unqualified experts. Doctors and their defense lawyers heralded this decision as a breakthrough: no more experts who just practice medicine out of the trunk of their car. But plaintiffs’ lawyers have since learned to use Daubert to the patient’s advantage. Because a judge is required to rule on the quality of the experts, those experts who do pass muster are essentially accredited in the judge’s eyes. That can lead to a more positive, less skeptical attitude from the bench. Jurors, in turn, are likely to pick up on the judge’s “signal” that an expert is credible. In addition, so-called Daubert hearings are making their way into state as well as federal courts. Such a hearing proved to be a key factor in a multimillion-dollar verdict in Nashville in April 2002, in which an error by the anesthesiologist led to the death of a man who was in the hospital to have his rotator cuff repaired. Nashville hadn’t seen a verdict of that size in 10 years. • Trial lawyers have started working together in so-called “bad baby” cases. In 1994, plaintiffs’ lawyers formed the Birth Trauma Litigation Group, affiliated with the Association of Trial Lawyers of America. The group’s newsletter and seminars have catapulted lawyers up the learning curve with science-based arguments designed to overcome new defense theories. Consider Erb’s Palsy, a birth injury that damages nerves controlling the arms and hands, which is a fixture in the group’s discussions. Members know about that damning Food and Drug Administration Public Health Advisory of May 1998 regarding vacuum extractors. Too many doctors don’t. Group members send “chain” letters to each other asking for depositions of “notable” defense experts. It seems that some big-name defense experts have been, shall we say, inconsistent in their testimony. Similar litigation groups are focused on laparoscopic surgery, laser eye surgery and nursing homes. • Arrogance equals big verdicts. Doctors’ arrogance coupled with the “stuff happens” defense makes jurors angry. Research into the causes of malpractice has turned up not-so-startling evidence that physicians’ behavior leads to malpractice claims. And behavior is based on attitudes — 44 percent of doctors say they are utterly exhausted, with 41 percent admitting they’re so depressed that they have no hope that things will improve. Depressed and exhausted doctors can easily sound uncaring, particularly during the stress of trial. Doctors may also embrace the “stuff happens” defense. But jurors don’t. They don’t understand why a doctor can’t give a clear explanation for how a patient was injured. Jurors don’t like it when they sense that a highly trained professional is shrugging his shoulders and saying, “Sometimes things go wrong.” • Technology and television have changed how the public views doctors. Trial lawyers have learned that the best way to make a doctor tell the truth — or to squirm — is to put him in front of a camera. All serious cases now use videotaped depositions. Likewise, the image of doctors has fallen. Like trial lawyers, they advertise. And today’s television dramas often show them as volatile and troubled persons who sometimes tell lies. That’s a far cry from earlier doctors-as-heroes shows like “Dr. Kildare” and “Marcus Welby, M.D.” Today, a viewer is more likely to see a lawyer confronting an ethical dilemma and getting it right. Just tune into almost any segment of “Law & Order.” • Doctors have lost the moral high ground in their effort to limit verdicts. Just when self-interested physicians were lobbying the hardest for Congress to pass a $250,000 cap on non-economic damages, the tragic death of Jesica Santillan, the 17-year-old girl who received an incompatible heart-lung transplant at Duke University Hospital in February 2003, highlighted the careless underside of medicine. Add to this the news reports on the number of people who die from hospital- or doctor-caused complications and the follow-up reports that nothing was being done to reduce the number of those deaths. These have not been good developments at a time when potential jurors already fear that doctors are more interested in making money than saving lives. Of course, it doesn’t help either that when doctors themselves are injured, they demand the same multi-million-dollar damages. An Indiana neurosurgeon who slipped and fell in a puddle of water in a hospital pantry in 1998 sued the hospital. The jury awarded him almost $17 million for the injury to his arm. Was the award justified? Perhaps, but surely no more so than many other big verdicts. These are some of the key reasons why awards have risen in malpractice cases. As for the future, politicians will keep arguing about caps. But the cries of outrage over repetitive malpractice “crises” — 1975, 1988, 1994 and today — are beginning to ring hollow. Look to courts to ban confidential settlements in all kinds of cases, including malpractice. And expect judges to reach another conclusion when it comes to reforms. As in unconstitutional. Lewis L. Laska is a lawyer and a professor at Tennessee State University in Nashville.

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