Don’t make the same mistake that California did

In addition to my medical training at Yale, I have a law degree from Stanford. (OK, I know it’s second place to Yale’s traditional dominance, but how many New Haven winters can one tolerate?)

As such, I have had the opportunity to view the range of perspectives with respect to medical negligence issues, including those of clinical practitioners, litigators, patients/clients and insurance companies (to which I have consulted regarding risk management).

My state of California has a frankly ludicrous limitation of $250,000 for “non-economic damages.” This level was set in 1975, and has not been changed in the intervening 28 years. I assume I need not delve into the litany of comparative cost/price multiples that have been experienced in all other areas of the economy during this time frame.

As you know, this means that a patient injured by treatment that is judged to be negligent can recover only the cost of medical care and lost wages, plus no more than $250,000 for the related pain and suffering that he/she may experience for the remainder of his or her life.

Beyond this, of course, at least some amount of any award goes to attorney’s fees. This amount is actually quite minimal, considering the costs and risks involved, coming to 40 percent of the first $50,000 received, one third of the next $500,000, 25 percent of the next $500,000, and 15 percent of any amount above $600,000.

Factored into this, of course, are the actual costs of handling a case, including experts, who are paid out of pocket by the attorney even in cases that are not ultimately pursued, or subsequently are unsuccessful; various forms of demonstrative evidence, always expensive; and considerable office and miscellaneous expenses. (This does not even include the costs of the attorneys’ time to evaluate the great majority of cases that are eventually not accepted and to engage in the long and arduous task of quality representation for cases that are ultimately pursued.)

Of course, it often occurs that even clearly meritorious cases are lost, for a variety of technical reasons. This results in enormous unreimbursed expenses for the attorney.

As a result, there are few attorneys in California who will even agree to handle medical negligence cases. Many of those will accept only matters in which massive economic damages can be demonstrated, such as with “bad baby cases,” which in my opinion are very often not justifiable at all (resting only on an adverse outcome that it would have been quite difficult to avoid), and brain injuries in relatively young individuals.

I cannot tell you how many technically meritorious cases I and my fellow attorneys have been obliged to turn away, because the litigation risks are too high and/or the prospective damages, though significant, are not great enough to justify pursuing in this hostile and inequitable environment. Even though most competent attorneys would not consider assuming the risk of taking a marginal case to trial, the great majority of cases that do reach that stage are “defensed,” despite clear liability and obvious proximate damages.

I find it amusing that an economic conservative such as myself is aligned with the “trial lawyers,” but, as I hope is the case for all of us, I do my best to thoroughly evaluate public policy completely and without predetermined bias. In this instance, I would clearly come down on the side of greater substantive and procedural fairness for attorneys and their clients, regardless of the nature of my training and experience.

Fundamentally, it is the insurance companies that are most responsible for the sometimes outlandish policy costs. You know the story well, as does the media, despite their tendency to reflexively assign fault to trial attorneys. When inflation was extremely high and investment income was soaring, the insurers took on any risk imaginable, in order to keep those premium dollars coming in that could be multiplied several times over with a reasonable investment strategy. During those years, insurance executives paid themselves unconscionable salaries. Now that they can’t count on investment income to any great extent, they attempt to maintain their lifestyles off the backs of doctors.

Additionally, I would like to see greatly diminished awards for the minority of “big cases” that seem to capture the sympathy of the public and of juries, and garner awards out of all proportion to liability and damages. Also, it is true that there are a small number of states in which it is health care providers and plaintiff’s attorneys that are somewhat unfairly advantaged.

But for the large majority of those injured by medical negligence, the system is clearly stacked against them. Rather than propagating California’s unconscionable arrangement across the country, measures should be taken in states such as California to level the playing field, among all participants.

As for me, the various aligned forces that I have described, in the realms of public policy, law, politics and economics, have induced me to shift my focus to a greater involvement in the life sciences. I find this to be unquestionably more enjoyable, and it optimizes the value of my basic science and clinical research experience, regulatory knowledge, and M.B.A. training. However, to the extent that in the aggregate such realignments further disadvantage patients, I remain deeply troubled and conflicted.

Mark Williams, M.D. ’79, J.D.
Menlo Park, Calif.