Doctors I meet always discuss the malpractice problem. They seem to worry about lawsuits to an incredible degree. Yet, the statistics show that doctors and hospitals win an overwhelming majority of the cases in Alabama. When they express these feelings to me, I tell the doctors, “You need to raise your deductible as high as you can possibly raise it because the chances of a settlement or verdict against you is minimal.”
Why, you might ask? Well, medical malpractice cases are difficult everywhere, but in Alabama, we have the Medical Liability Act (§§ 6-5-480 and 6-5-540 of the Code of Alabama) which provides great protection for the medical community. From a plaintiff’s perspective, it’s like going to Las Vegas and playing against the casino with loaded dice in the casino’s favor – virtually impossible. In fact, going to Las Vegas would probably be more fun.
What makes this law so hard for injured victims and the families of injured victims? First, the law requires the plaintiff to prove that the doctor, hospital, nurse, or other healthcare provider “breached the standard of care” for those healthcare providers in the same area of practice. This is more than a simple negligence standard. This standard requires the plaintiff to have a “similarly situated” expert testify against the defending healthcare provider. For example, if the accused physician is a board certified obstetrician, the plaintiff must have a board certified obstetrician testify that the accused physician breached the standard of care for board certified obstetricians in the community.
Hiring such experts gets expensive. Consequently, the client must have such injuries that would warrant the expense of hiring such an expert. Otherwise, trying the case to a jury would be futile because the injured party would not receive compensation after the attorney earns a fee and is reimbursed for his expenses. Furthermore, it is extremely difficult to find an expert within the State of Alabama. Consequently, most experts are from outside the State, and the defendant usually has several experts from within Alabama to testify on his behalf. Given our well-renown healthcare facilities in Alabama, the jury is left to wonder why the plaintiff had to hire an expert from outside the state.
In addition to the above, the Act prevents the victim, or the victim’s family, from conducting proper discovery. The Act provides the following:
§ 6-5-551 – . . . Any party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.
If a doctor has left a sponge in someone after surgery on ten occasions prior to the incident complained of, those ten (10) incidents are not discoverable from the doctor. If this information can be obtained from an independent third party, you can discover it, but good luck getting that information before the jury.
If you get beyond these hurdles, you still must prove that the doctor’s breach of the standard of care actually caused the injury or death alleged. Sometimes, doctors do breach the standard of care, but notwithstanding that breach, the injury was caused by some other factor. For instance, a doctor may have failed to administer the proper antibiotic, but the patient dies as a result of a heart condition. The failure to give the proper antibiotic did not cause the death.
Finally, medicine is not an exact science, and there are hazards of surgery. Surgery is risky, and bad things can happen during surgery. The doctor obviously would not wish these things to happen, and they cannot be punished for every bad result. However, there are times where they need to be held accountable. Juries are loathe to do this. The jury is not told whether a doctor has insurance, and they are left to wonder whether or not the doctor and his family will be forever punished as a result of a verdict. What juries need to understand is that doctors have malpractice coverage, and if they don’t it’s because they are unable to obtain coverage. There are VERY few doctors who can obtain malpractice insurance and don’t get it.
Clients call or e-mail every day about a potential medical malpractice case. Most of these potential cases are not cases. Most doctors are competent professionals and do the right thing, but there are some out there who don’t, and the way the system is set up, those doctors are protected. This should not be the case. When healthcare professionals do not take proper precautions to protect patients, they should be held accountable. Otherwise, we should just give the healthcare profession total immunity, and not even worry about these issues. What would the insurance industry say about that?