Pitting Scalpel Against Scalpel

The rise in malpractice insurance premiums has hospitals and doctors justifiably concerned about profit margins. Their deductibles are going up, and the overall cost of doing business is higher.

The frustration even led to some 400 sign- carrying doctors, nurses and other health care workers rallying outside the Will County Courthouse one day in early October to call attention to skyrocketing medical malpractice insurance.

We’ve all heard about doctors who have moved their practices to other states or regions, doctors who have quit their specialities, and hospitals that have discontinued some services because of the inability to pay costly premiums.

However, this phenomena is spawning some unexpected consequences, as well.

In the early lore of medical malpractice, defense layers always approached a plaintiff’s claim with a united front. In the case of- co-defendants, on physician would never say anything against another physician or even implicate wrongdoing on the part of any other health care colleague.

They kept up a code of silence and united defense in the hope of such solidarity making a stronger impact on the jury, regardless of the facts. Instead, they would always point the finger at the plaintiff or assert that the injury was merely a risk of the procedure.

Above all, though, it was implicitly prohibited for one defendant to offer testimony against another health care provider. But, that may all be changing in this disruptive economic climate.

Doctors who are pressed to secure affordable malpractice insurance, if they can get it at all, now are increasingly willing to speak the truth and criticize other health care providers involved in malpractice lawsuits. It was part of an effort to exonerate themselves from a potential adverse verdict.

In fact, some doctors who have been on the other side of adverse verdicts are suing their lawyers for legal malpractice for failing to fully develop a defense that includes testimony that favors plaintiff’s claim, albeit against others.

Lawyers who have been trying to put forward a united defense actually may have been undermining their clients in their lack aggressive and zealous representation. Their " not me" defense has been inadequate when they have failed to also say it might be the other guy at the defense table.

It should also be pointed out that this defense approach is tantamount to making the hospitals excess insurers to the doctors. The physician’s defense although calculated to save a buck for themselves, usually leave the hospital on the hook for a greater portion than it should; but the hospital’s insurance company frequently will be forced to over, if necessary, just to get rid of the case, including the physician’s portion of it.

This scenario really amounts to both the doctors as well as the injured patient becoming pawns because the insurers for the doctor and the hospital are undergoing their own intramural skirmish behind the scenes, when, instead, they should be doing what is right: telling the whole truth even when it hurts. The situation, in fact has gotten so out of hand that stories in the courthouse abound of mishandling of cases to the point where settlement talks collapse.

It is no secret that the insurers pick a limited number of defense lawyers in any given jurisdiction who are driven to get the next case from the company or medical practice.

It is becoming clear that some of these lawyer risk selling the insured short by no third-partying the codefenants. moreover, these same lawyers are compromising themselves and their own profession by less then zealous advocacy in each case.

It all boils down to a question: What is the meaning of an aggressive defense? It may not be sufficient to contend merely " It was no my client." Defense attorneys need to examine whether they should be exposing the real culprit instead of trying to cover it all up when there is apparent negligence afoot.

When the truth of a dispute is withheld because of an attorney’s fear of biting the insurance hand that feeds him, the harm caused by the initial tortuous event is compounded even further in that the best interests of the individual client are not being protected.

On yet another level, such conduct spells the continued erosion of professionalism and a loss of the public’s confidence in our civil justice system.

A study released by Columbia Law School in April concluded that the cause of anti-lawyer sentient may be a distrust of the law itself. this is compounded by the conflict- filled milieu in which we practice: unwieldy rules, a winning -at-all-costs attitude, the superiority of the bottom line and a profit- generating marketplace.

Although these trappings do not lessen professional responsibilities, recognizing the realities of the nature of our work can help everyday lawyer develop an intolerance of poor judgement, ignorance and short-sightedness in all that we do.