There are commercials on TV by prominent plaintiff personal injury law firms advertising for clients. One promotes “If we don’t win, you don’t pay.” Another promotes the notion that anyone who owns a phone already has a lawyer. Still others promote the types of injuries that can be monetized, but never mention medical malpractice.
All imply that a contingency fee totally forgives clients of all legal transaction costs. All imply a triage method that weeds out a meritorious lawsuit, which results from a true error, from a frivolous lawsuit, which results from a random error-of-nature. True or not, the purpose of the commercial is to distinguish these firms from standard “high-volume personal injury firms.” These commercials promote the subscriber as a “boutique personal injury firm.”
What these advertising slogans really say are “If we don’t win, neither do you” and “If your case can be monetized, you have a lawyer.”
In any event, medical malpractice insurance companies already have a plaintiff attorney at a disadvantage. These commercials imply a thin operating margin, which depends on a favorable settlement or judgment. Malpractice carriers know that complex medical details require time, during which more transactional costs accumulate. Prolonging legal processes increases these expenses. However, doing so also increases risks for sympathy bias and a potentially higher jury verdict.
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One case, in which the injury is cerebral palsy in a newborn, serves as an example. This case has no merit but has a potential for sympathy bias. It goes to trial and the jury verdict runs to hundreds of millions of dollars, among the largest in U.S. history.
Advertise as these “boutique” personal injury law firms may, in truth they do no better differentiating a medical error from an error-of-nature than does any other personal injury law firm. For that matter, neither does a medical malpractice carrier or a defense attorney. To avoid sympathy bias and a high jury verdict, a malpractice carrier may offer a conveniently low settlement, regardless of the merit in the case.
Fortunately, on appeal, an appellate court overturns the verdict and the plaintiff firm makes nothing, while incurring sixteen months of additional legal transaction costs. The malpractice carrier’s strategy pays off. Nevertheless, it still takes eighteen months; the malpractice carrier still pays the defense attorneys and premiums increase for all doctors insured by it.
Most doctors have been and will be sued for medical malpractice and most cases are without merit. Nevertheless, medical malpractice insurance is unavoidable and so is the cost of a premium. Just because a cost is unavoidable does not mean it cannot be reduced.
Better decision-making can and does decrease unavoidable costs. I write this article to inform doctors that I develop a decision-making tool that discriminates a true medical error from a random error-of-nature with 95 percent confidence. This decision-making tool undermines the contingency fee strategy and quantifies the merit in a case with a concrete value, which “affidavits of merit” required of plaintiff counsels do not do.
When sued, it is up to doctors to promote this to their defense lawyers; otherwise, their chance of prevailing is 50/50 when it could be 95/5. Defense lawyers will likely be receptive because the advertising slogan “If we are your lawyer, we will win” can be promoted to medical malpractice carriers that hire them.
If you are interested, can we have a discussion? Whether you discuss this with me or not, this is your decision. I am confident that, if you do not, someday you will come to regret it.
Howard Smith is an obstetrics-gynecology physician.
