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Nearly five months after a state government Web site began posting doctors’ malpractice histories, the publicity may be having a chilling effect on settlements. Lawyers on both sides of the aisle say that some doctors, faced with the reality that even a confidential settlement will end up on the Internet, are opting to take their chances in court. They are exercising the right available under most medical malpractice policies to withhold their consent to settle, even when it goes against the wishes of their carriers and advice of counsel. “Doctors do not want to settle at all now that it has to be reported to the databank for any payment whatsoever,” says defense lawyer Richard Amdur. Amdur used to settle about a third of his cases but estimates that the figure has dropped recently to 10 to 15 percent. The impact is mainly felt in cases under $100,000, says Amdur, of Eatontown, N.J.’s Amdur, Maggs & McGann. Robert Conroy, of Kern Augustine Conroy & Schoppmann in Bridgewater, N.J., sees the same trend from another angle. Lawyers at his firm are being retained more often by doctors who refuse to go along with carriers’ positions on settling. Some plaintiffs’ lawyers also see a deterrent effect. “Clearly some people are more hesitant,” says E. Drew Britcher, chairman of the medical malpractice committee of the Association of Trial Lawyers of America-New Jersey. Like Amdur, Britcher sees this with smaller claims, where any verdict would fall within the doctor’s malpractice coverage. “Before, there was some potential advantage to physicians to let the case be settled,” says Britcher, of Glen Rock, N.J.’s Britcher Leone & Roth. “The only advantage that now exists for the physician is a case where there might be personal exposure.” He adds: “Certain defense lawyers have made a big deal to me that they’re very troubled by this everything-ends-up-on-the-Internet rule.” The Web site was authorized by the New Jersey Health Care Consumer Information Act, N.J.S.A. 45:9-22.21, and includes malpractice payments in the past five years as well as the medical school, licensing history, hospital privilege restrictions, disciplinary actions and other information about the state’s more than 32,500 doctors, osteopaths and podiatrists. New Jersey’s largest malpractice carriers apparently aren’t willing to say whether they’ve observed the same phenomenon. Princeton Insurance did not respond to a request for comment and Michael Martin, general counsel for the MIIX Group, declines comment, noting that the MIIX Insurance subsidiary, in a voluntary solvent runoff since 2002, is under state control since being ordered into rehabilitation on Sept. 28. NOT A SURE THING Other lawyers aren’t yet convinced that publicity makes a difference. “It has come up in discussions, but I can’t say it has played a role,” says plaintiffs’ lawyer Scott Arnette, of Red Bank, N.J.’s Miller Gaudio Bowden & Arnette. Though he says he is seeing more settlements nixed because of doctors’ refusal to consent, he can’t pin it on the Web site, which debuted June 23. “I haven’t seen it yet,” says Dennis Donnelly, of Chatham, N.J.’s Blume Goldfaden Berkowitz Donnelly Fried & Forte. “People are still going to settle in the cases they’ve always settled,” Defense lawyer Richard Grossman, of Grossman, Kruttschnitt, Heavey & Jacob in Brick, N.J., agrees, saying. “I have no personal experience where a case did not settle because of that consideration.” A bigger issue for doctors, he says, is the increase in premiums that follow a malpractice payout. Douglas Hague, of Wilentz Goldman & Spitzer in Woodbridge, N.J., who handled medical malpractice cases as a Middlesex County judge from 1996 until 2003 and is now an arbitrator, likewise has not witnessed an impact. But he says several sitting judges have mentioned to him they have not seen an increase in malpractice trials, though they fear that will happen. James Ronan, a defense lawyer with Ronan, Tuzzio & Giannone in Tinton Falls, N.J., sees the database as “just one more reason not to consent” but less of a negative factor than increased premiums. Still, it is significant enough that Ronan predicts carriers will start writing policies without consent clauses. He says he knows of one carrier that did so recently but declines to identify it. The other effect Ronan sees is doctors bypassing insurers to avoid premium hikes. Within the past six months, “I’ve been contacted by several doctors on several claims where there’s an inclination not to notify their carriers,” says Ronan. The claims have been in the $10,000 to $15,000 range. Plaintiffs’ lawyer Arnette notes another trend, this one in multiple-defendant cases, which could be database-related. Defendants might be “trying to lay off payment onto entities who won’t be entered into the database.” He points to a recent confidential settlement in one of his cases. There were two defendant doctors but the entire $3 million was paid on behalf of a nurse-midwife. He says he does not know why she would be the only one to pay. Arnette adds that the database could help plaintiffs’ lawyers, in deciding whether to take a case, by providing a potential defendant’s loss record. Plaintiffs’ lawyer Thomas Vesper views the database as a good resource for a different reason: it gives plaintiffs’ lawyers the jump on discovery about a doctor’s medical malpractice history. Yet another use would be to come up with evidence of similar incidents that arguably placed a doctor on notice “that something they were doing was a risky procedure,”says Vesper, of Westmoreland, Vesper, Schwartz & Quattrone in West Atlantic City, N.J. MISSING INFORMATION Never use the database servers, some lawyers say there are gaps in the malpractice history profiles making it onto the Web site. For instance, Stephen Weinstein says that of four large malpractice cases he checked on the database, only one was listed. In one of the absent cases, an obstetrician paid $4.5 million to settle a cerebral palsy case in April 2003 but that doctor’s record shows no payouts in the past five years, says Weinstein, who heads a firm in Morristown, N.J. The effect of the data gap is compounded by the comparison of each doctor’s records with those of other doctors in the same specialty. Each doctor’s malpractice experience is rated as average, above average or below average, so without complete data, a doctor might be categorized as above average because of missing data on peers. According to Genene Morris, a spokeswoman for the Department of Consumer Affairs, which hosts the Web site, the malpractice information comes from the insurance companies and the database is updated every 30 days. She says information disputed by doctors is not posted but most disputes are resolved within days or weeks and the majority have to do with malpractice histories. Abbott Brown, a plaintiffs’ lawyer who has noticed some of his settlements missing from the site, says not every settlement should be there anyway as a matter of fairness. Since most doctors have no malpractice history, even one case can push a doctor to the above average category, says Brown, of West Orange, N.J.’s Bendit Weinstock. “It would be fair to allow a person to settle one or two cases without being posted on the Internet.” Doctors worried about broad public exposure have cause for concern: The site, www.njdoctorlist.com, has drawn more than 101,000 visits as of October’s end. Interest is waning somewhat, though, after the early rush. More than 21,000 visits were made in the first eight days and more than 54,000 of them by the end of July. In contrast, October, the last month for which figures were available, saw fewer than 14,000 hits.

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