If anything represents the economic effects of medical malpractice, it is the following two cases. One involves a teenage mother and a major academic medical center. According to attorneys on both sides, the lawsuit is legitimate. However, its underlying merit is described as only 25.3 percent. Nevertheless, a legal strategy obscures this. The mother is 16 years old when she conceives and lives in a West African country until 17 weeks of gestation, during which time she receives no prenatal care. After arriving in the United States, she begins prenatal care at 20 weeks of gestation. At that time, she is found to have chlamydia; however, other infections endemic to her country of origin, including viral and TORCH-related conditions, can go undetected when screening is delayed because viral RNA may decline over time. At 25 weeks, she develops severe toxemia and is transported by helicopter from a regional hospital to a tertiary care center, where a sonogram shows a small-for-gestational-age fetus and oligohydramnios. Labor is induced. Later, the premature infant is diagnosed with cerebral palsy.
A lawsuit is filed alleging that induction of labor, along with failure to perform a cesarean section for fetal indications, caused the cerebral palsy in this preterm, low-birth-weight newborn. The defendants are the tertiary care hospital and its attending perinatologists. A legal strategy shifts the case by excluding testimony from anyone, including the mother, regarding conditions in her country of origin during the first 17 weeks of fetal development, on the grounds that her immigration history would be more prejudicial than substantive. The case results in a record-setting plaintiff verdict of more than $200 million. Why do defense attorneys for the hospital not object to the exclusion of testimony about public health conditions in the mother’s country of origin? The answer becomes clearer later. The verdict is eventually overturned by an appellate court, which rules that the plaintiff attorneys failed to prove negligence by the physicians or hospital. Instead, the court finds that the mother’s medical conditions upon arrival in the United States were the proximate causes of the brain injury. The appeal takes two years, during which defense counsel continue to be paid.
The second case involves a patient injured after a laparoscopic gallbladder removal, requiring two major corrective surgeries, and complicated by a pulmonary embolism. The plaintiff, who is an attorney, represents himself. The defendants are a community hospital within a large regional health system and the operating surgeon, both represented by counsel paid through the system’s self-insured medical malpractice plan. This case, too, is legitimate, but its merit is described as 87.5 percent. Again, a legal strategy obscures it. The plaintiff retains a qualified medical expert, who prepares a certificate of merit stating, to a reasonable degree of medical certainty, that the standard of care was breached during the cholecystectomy. The certificate also states that the standard of care required conversion from a laparoscopic to an open procedure. The defense does not identify a medical expert. When discovery closes, however, the presiding judge rules that the plaintiff’s certificate of merit fails to comply with state procedural requirements and is therefore inadmissible. At the defense attorney’s request, partial summary judgment is granted in favor of the hospital. Even so, the case remains open because the surgeon performed the procedure and the hospital’s liability is based on respondeat superior.
The legal strategy tips the scale, but even a decade after the surgery, the matter remains unresolved. Meanwhile, defense lawyers continue to be paid through the self-insured malpractice plan. In addition, third-party payers indirectly bear these legal costs through the broader health care economy. If anything illustrates the problems with medical malpractice litigation, it is how chaotic this can become. One must ask what might have happened if the merit, or lack of merit, in these two cases had been assessed before legal strategies came into play. In the meantime, insured patients ultimately bear the cost of that chaos.
Howard Smith is an obstetrics-gynecology physician.
