On a CAT skiing trip in February 2007, I ended up with several doctors in my CAT.  At the end of the first day we were given some hot soup and a snack as our après ski.  As we talked, it came out that I was a personal injury trial attorney with a specialty in medical malpractice.  Of course their antennae went up, and I had to explain to them what I explain to many people who do not understand the wonderful system of civil justice that we have in this country when it comes to trying to correct a wrong that has occurred when someone is injured or killed as a result of another’s negligence, whether it be medical malpractice or being rear-ended in a car. 

First of all, let me say that all the doctors admitted that they had either witnessed or heard about horrendous medical malpractice occurring that had devastating results for the patient.  They complained about being included in some lawsuits that they thought they should not have been in, and, as is true of any defendant, they did not like having to deal with those matters.  

Since the doctors had to agree about the existence of malpractice, I asked them all a question I ask many people who have this discussion with me.  “In what country can the poorest person retain the best attorney and have that attorney not only invest his time, his staff’s time, and anywhere from $25,000 to $100,000 or more, interest free; all on the gamble that he can persevere and a jury will correctly understand the facts and then vote for his client and award sufficient monetary damages to compensate his client for the injuries and consequences that flowed from the negligence?”  The urologist smiled at me and, tongue in cheek, said, “Let’s see. Is it the United States?”  I then asked if the doctors realized that if the jury did not agree and the case was lost, not only did the client fail to receive an award and the attorney lose a fee that would cover the time and effort put in, but also the attorney’s out-of-pocket money spent on the case for experts, depositions, court fees, etc..was also usually lost because most clients cannot pay back those costs incurred by the attorney.  The soup and bread was finished and we headed for our rooms. 

That evening at dinner, one of the anesthesiologists who had been at the table earlier when we had our soup discussion, came over and sat next to me.  He told me that he had always believed that plaintiffs’ attorneys just made a ton of money and never realized that they risked their time and money to prosecute their cases.  He felt it was a good thing.  He thought it was good for those who were negligently injured, especially the poor who could never afford to pay for the best attorney if there was no contingency fee system.  I added that this was a right of every citizen that should not be taken away by those who wish to protect negligent doctors and their insurance companies.    

My next topic:  Why limiting non-economic damages (the goal of “tort reform”) i.e. damages for pain and suffering is a terrible idea and unjust. 

WGA