The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/382597
malpractice suit, the chance of a verdict in excess of insurance coverage, and the ex- acting of personal resources, is very real. (We can hear some of our colleagues scoff- ing at these realities, but would only ask that they imagine the same occurring to them every time a case was lost instead of won.) As a result, many physicians find them- s elves engaging in defensive medicine in some form, ranging from ordering addi- tional confirmatory tests, to avoiding high- r isk specialties, or avoiding particularly liti- gious areas in the state. Some retire from practice altogether or, as in the case of ob- stetricians/gynecologists, segue into gyne- cology exclusively. (Wherein we often lose some of our most skilled and experienced obstetricians.) Notably, a number of studies have linked an increase in the rates of pri- mary cesarean section deliveries in the United States with the fear of anticipated litigation and the rising professional liability premiums for obstetricians and gynecolo- gists. 3 A cesarean section has become the most common major surgical procedure performed in the United States. 4 Even so, it is not without significant risk, such as signifi- cantly higher morbidity and mortality to both mother and baby, as compared to vaginal births. 5 Notwithstanding, the ce- sarean section is frequently offered as the "simple path not taken" – the panacea for many malpractice suits involving birth in- juries. To add to this conundrum, plaintiff's counsel must look at the "value" of a case as much or more than the degree of a physician's purported neg- ligence. The "no harm, no foul" phrase – on a sliding scale – is a crucial step in the calculated evaluation of a case. If the most in- competent or negligent care imaginable results in a margin- al increase in medical expense, lost wages, or pain and suffering, there is far less likelihood of a suit than in the instance of a textbook handling of a mother's labor and delivery that culminates in a catastrophically brain injured neonate. While many – among the bench, the bar, or the entertainment industry (who remember James Mason's character in "The Verdict") – would love to think of defense lawyers as insurance shills who delight in suppressing the interests of widows and orphans – this is only partially true. Sarcasm aside, if 90 percent of the medical negligence cases that actually go to trial are won by medical providers (usually physicians), then many patients, their families, or estates have sus- tained some legitimate level of uncompen- sated monetary loss. 6 This is particularly true for birth injuries, adult and pediatric neurologic, and various other crippling con- ditions. Admittedly, some cases settle. In an article discussing stress as- sociated with medical mal- practice litigation, Sara Charles describes (unfortunately) an all too familiar anecdote of a general internist who, after having been served with his first summons and complaint, was awakened that evening with his first episode of atrial fibrillation. 7 Not only did this instance factor heavily in the physician's decision to seek emergency medical attention that evening, but it also factored in his decision to settle the action and retire from medicine earlier than he had planned. 8 If the above scenario is true – if the emo- tional and professional toll on the physician is ultimately unproductive to society as a whole – if there is a reason other than juror's blind faith in physicians that results in far more defense than plaintiff's verdicts – then, is it not time for Kentucky to at least begin serious and sincere study of alterna- tives to traditional malpractice litigation? What would the alternatives be? We will not address monetary caps as a stand- alone alternative. They lend to political sound bites, but present constitutional and practical challenges. In some settings, caps merely sink societal compensation to a lev- el of mediocrity, where less meritorious claims are rewarded and more meritorious claims are often never filed, the least de- serving paid and the most deserving left without relief. One possible alternative would be requir- ing a prerequisite certificate of merit to be filed in all medical negligence actions. Sev- eral states call for some form of a certifying statement as to the merits of the medical negligence claim. The states of Florida, Minnesota, Mississippi, and North Carolina, to name a few, require an attorney to certify in the complaint that he or she has in good faith consulted with an expert who believes that there is evidence of negligence in the care at issue. 9 Other states require an affi- davit or certification from the consulted ex- 18 B&B; • 9.14 F E AT U R E : T O R T S winners of the United Way of the Bluegrass Raise the Bar Award in recognition of their generosity and civic commitment throughout Central Kentucky Congratulations to Dinsmore & Shohl LLP Pictured Left to Right: Cyndi McGraw, Relationship Manager, United Way of the Bluegrass Chauncey Curtz, Managing Partner of Dismore & Shohl LLP Bill Farmer, President & CEO, United Way of the Bluegrass article continued on pg. 20