What was your hardest case?
A malpractice suit that began in 1967 involving a young woman who was given a dangerous antibiotic after cosmetic surgery on her nose. The drug caused severe aplastic anemia. We lost the first trial because the doctor in question lied and changed his records. Eventually a disgruntled secretary broke the case and we went to court again. The jury in the case returned a verdict of $500,000, but then we had to sue the insurance companies to collect. We finally wound up settling out of court for $338,000.
What was your most significant case?
That would have to be the one involving the death of my friend Jerry Burke. Can you imagine? Hemorrhoid surgery—the simplest of all! But of course any operation that involves anesthesia has risks. The anesthesiologist overmedicated Jerry, and he had cardiac arrest on the cutting table. The surgery never began. It was an unbelievable tragedy. The anesthesiologist on paper was terrific, but he didn't use common sense. Jerry lingered in a coma for a month, then died. I got a total of $1.2 million from the doctor's insurance company and the hospital. Until then a half-million-dollar settlement was about tops in a malpractice case for me.
Was it partly revenge that brought you into the case?
Yes. And oh, so sweet.
Why is there a rise in malpractice cases?
Malpractice was the last area to grow out of the negligence field because it's so complex and difficult. Until 10 or 12 years ago there weren't many malpractice cases, and they weren't handled properly, so there were few judgments and little money involved. Before then, people accepted a bad medical result. The doctors blamed fate or idiosyncratic reaction, and the people bought it.
How does a patient know whether he has a malpractice suit?
Just because something bad happens doesn't mean there was malpractice. There are no guarantees. It's never as easy as a doctor taking off the wrong leg. They're tough cases, all of them. I turn down about seven or eight out of every 10 I look at.
Does a verdict against a doctor mean he's incompetent?
Not necessarily. I'm careful to let the jury know that I'm only out to prove that, in this particular case, the doctor deviated from accepted medical standards and by omission or commission injured my client. It gets back to the definition of negligence: failure to use reasonable care under a given set of circumstances.
Is the threat of a suit forcing doctors to order more lab tests and X-rays?
All that such tests mean is that a doctor lacks confidence in his own abilities. I have never had one case based on a doctor not ordering an X-ray or a test. If they spent half as much time studying medical books as they do figuring ways to hide their income, they wouldn't have to worry about malpractice.
When you get a judgment against a doctor, what happens to his practice?
Nothing. It has no effect. I have yet to see, even with bad doctors, any attempt by the medical profession to cull them out.
Should negligent doctors be punished?
In the first law code, drawn up by Hammurabi the Babylonian king, a doctor who committed malpractice had his hands cut off. So what are they complaining about? I only want their money, and I want them not to screw up again.
Is it hard to get one doctor to testify against another?
You bet. It used to be almost impossible because the law in most states was that only a doctor from the same city could testify about what was standard medical procedure for the area. Then a trend developed that what was obviously good should be the same in Utah, Florida or New York.
Can a jury understand all the complex medical facts and decide?
Yes. People today are a lot more sophisticated—and that's where the lawyer comes in too. The key ingredient that makes a good trial lawyer is the ability to take a complex set of facts and present them in a way a jury can understand. The doctors would love the public to believe that only other experts can decide the case.
Are jury verdicts higher if you can show a doctor has lied about a case?
Absolutely. There are two areas for damage: compensatory for actual injury, and punitive to punish. It's hard to get punitive damages. If someone makes a mistake, it is almost never intentional. But if the doctor lies or covers up, the jury will often bring in a higher verdict that it may call compensatory, but which tends to have an element of punishment to it.
How do you feel about doctors?
I basically do not like them. It's due in part to their training. They become tin gods, with the attitude of how dare anyone question them. They will almost never admit they made a mistake.
Have you personally ever had any bad medical experiences?
No, thank God, I'm healthy. If I had to have an operation, I would have to go to another city under an assumed name. I'm one guy they would really like to get.
How much do you make on a case?
We take cases on a contingency basis. If I win, I get between 25 and 40 percent of the verdict. I make in the six figures each year and I earn it. I have no guilt pangs.
What do you think of the proposal to eliminate jury trials in civil cases?
This is one of the most dangerous suggestions ever made. The real reason for the clogged court system is that we have too many laws, selectively enforced. We need to get the victimless crimes like vagrancy, disorderly conduct, gambling and prostitution out of the system.
How can you justify the enormous jury verdicts in malpractice cases?
People have to understand that when we talk about a big award, we're usually talking about some disaster. If you have a 35-year-old father of two making $17,500, and some medical mistake wipes him out, then a verdict of $1.3 million is not huge—it's reasonable.
But aren't the large jury verdicts pushing up insurance rates?
The so-called malpractice insurance crisis was a lie. Sure the rates went up, but then the doctors in Florida got smart and formed their own self-insurance group. In the past 25 months they have taken in $26 million in premiums and paid out a half million in claims. They found what we had been saying all along—that the medical malpractice insurance field is extremely profitable.
Are there steps that hospitals could take to reduce malpractice claims?
If the hospitals would go to the patients and try to help them after a tragedy has occurred, they would wipe out the majority of malpractice claims. But they don't. Hospitals are very political. The infighting and backbiting is amazing.
What steps would you suggest for doctors to cut down on malpractice claims?
The medical profession should police itself. Damn it, they know who the bad surgeons are, who does the unnecessary surgery, who shows up drunk or unprepared. But do they do anything about it? No. They're cover-up specialists.
What is the future for malpractice?
Probably more obstetric and pediatric cases. I'm handling several right now. A recent one involved the birth of a baby where they had decided to do a cesarean, but delayed an hour and a half. They were good doctors—a good obstetrician and a good anesthesiologist. But they didn't use horse sense. The child was born severely retarded. The jury awarded the family $1 million. If you have a retarded or paralyzed baby, how much should you go for in the verdict? What's too much money?
Saved by the Bell Reunion
The hookups, the meltdowns, the memoires
The case reveals what was really going on what they think of each other now!
