Malpractice 101

For weeks and weeks I have been wanting to really tear into the whole medical malpractice issue. I keep putting it off, however, because it’s such a meaty one. I can’t do it justice in just one post. And I’m no expert, so I need to do some brushing up first.

That said, I just read (on a new favorite site, www.overlawyered.com) a tidy description of how malpractice insurance rates and runaway jury awards have driven many OBs out of practice in southern Illinois.

If you want an example of how malpractice cases proceed, read this story about a six million dollar judgment against a doctor, midwife and nurse. A baby is born in Kentucky with cerebral palsy. A lawyer for the family sues everyone present in the delivery room.

(NOTE: This is why doulas should carry malpractice insurance. Even if you aren’t “responsible” for the birth, you will be named as a defendant in the case. It’s how these things are done. It’s simply thoroughness on part of the family’s lawyer. And unless you plan to represent yourself in court, getting your case dismissed will cost you hundreds to thousands of dollars)

Then comes the opportunity to settle. In this particular case, the doctor(‘s insurance company) and the nurse(‘s insurance company) chose to settle rather than go to trial. Remember, SETTLEMENT IS NOT AN ADMISSION OF WRONGDOING. Rather it is often just the smartest financial decision to make. A settlement is a negotiation; both sides usually get something they’re after. Going to trial is an all or nothing gamble. And, as the doctor’s attorney noted, “When a baby is born with birth defects, it is easy to generate sympathy with a jury, making [the doctor] vulnerable to a verdict whether she was guilty or not.” Do you feel lucky? Do ya’ punk?

(NOTE: By the way, just as settlement is not an admission of wrongdoing, A PLEA BARGAIN IS NOT AN ADMISSION OF GUILT. For the same reasons you might settle a case to keep the wild card jury from deciding your financial fate, you would accept a plea bargain rather than let a group of emotionally volatile strangers make decisions about your freedom. Criminal procedure and the screwed up American legal system is the topic for another day, another blog, etc. But I couldn’t resist pointing this out).

So only the midwife goes to trial. The jury is asked to do two things: decide whether the parents of the disabled child should “win” and, if so, assign percentages of responsibility to the parties.

The jury does not know that the hospital was dismissed or that the two other defendants settled. It decides that the midwife was 40% responsible. It then decides how much money the family should receive for the harm done to it. Forty percent of that final figure ($6 million in this case), is what the midwife(‘s insurance company) is responsible for.

I will save for another day my proposed solution to the malpractice dilemma.