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MEDICAL MALPRACTICE REFORM DEBATED Canton Repository Friday, October 3, 2003
The much-vaunted medical malpractice insurance reform debate between trial lawyer Allen Schulman and physician Bernhard Berger on Thursday evening at the Marriott McKinley Grand drew an animated audience of at least 250.
Amid punctuations of sarcastic laughter, loudly muttered profanity and the occasional cheer, Berger and Schulman parried and thrust for a solid two hours.
Dueling details. Warring statistics. There was no dearth of emotion in the room.
Each man gave his definition of malpractice, its recognition and remedies, jury awards, bad outcomes, tort reform and escalating malpractice insurance premiums.
The malpractice insurance crisis, Berger said, "is caused by lawyers filing numerous meritless, frivolous lawsuits."
Physicians are held to impossible standards, he continued. "Perfection," Berger said. "We are human, we may make mistakes. There may be bad outcomes but they may not be malpractice."
There is no financial downside to filing a nuisance suit, Berger said, because attorneys take cases on contingency.
"We need to countersue attorneys. But we can't because we have to prove malice," he added.
Juries lack the medical acumen to make intellectual decisions, Berger declared. Sympathy and empathy, he said, determine the size of the award.
Au contraire, Schulman rebutted.
"There's an elephant in the room that no one seems to recognize and a problem in the medical profession that needs to be addressed," said Schulman, in his opening remarks. "Trial lawyers who represent people who have been injured are not your enemies. We have the ability to work together for what is best for the patient."
It is the medical malpractice insurance companies that have created the problem of escalating premiums, Schulman said, through "bungling and mismanagement."
"That is the elephant in the room. And we have an epidemic of medical negligence which must be addressed," he added.
While Berger touted California's tort reform with its monetary caps as being the salvation for patients and physicians alike ó "There is no reason for all the other states to reinvent the wheel," he said.
Schulman maintained the opposite is true.
"Medical expenses and lost wages. They work for the executive who makes $17 million a year. He gets injured by a doctor or a truck, he gets the full thing. What about children, seniors, stay-at-home parents? They're capped while everyone else gets full compensation? You don't want to compensate for non-economic losses? That's what makes us live our lives. The love of a spouse or for a child. It's what makes life worth living. That is the loss," Schulman said.
A dizzying exchange of contradictory statistics, with and without attribution, clouded continuity.
Questions from the audience came fast and furious with Repository Managing Editor M.L. Schultze moderating the fray.
Question to Schulman: "What percentage do lawyers take in malpractice cases?"
"Anywhere from one-third to 40 percent including advancing all costs. If we lose, we have to write it off," Schulman answered.
Question to Berger: "Should independent juries or politicians in Columbus decide medical malpractice suits?"
"There should be health-care liability evaluation panels of physicians. You sue, you lose, you pay," he said. "The purpose of medical malpractice is to compensate the injured patient and not to make attorneys richer. A panel of doctors should decide if the standard of care has been met," he added.
Question for Berger: "Why were physicians exempt from jury duty until last year? You say you want a jury of your peers."
Berger answered, "Because we would be leading the jury around. I could sway the jury instantly because I'm good."
Question for Schulman: "Could you tell us how you decide which case is negligent before you send a letter to a doctor? Do you see whether there is really a negligence?"
Schulman responded, "Not every bad outcome is compensable. You're not God. But medical negligence does occur. We don't file lawsuits without having experts review it. But, with all due respect (to doctors), it is a closed society. Doctors are being thrown out of academies and societies for testifying."
"Those are the ivory tower boys," Berger harrumphed, " who have no practical experience. Local doctors should determine the level of care. Not some yo-yo in the university. If you think you have a case, you put up the bond, and if you lose, you lose."
"And if you lose, what happens?," Schulman quickly responded.
"Insurance pays," Berger answered.
"Thank you," said Schulman.
Question for Schulman: "If physicians are paid a fixed fee for service, i.e., a delivery, why can't lawyers be paid a fixed fee per represented case?"
"The contingency fee was designed to get access to the courthouse for the middle class and the poor. If you're out of work, how can you hire a lawyer?," Schulman said.
Following brief closing statements, Berger and Schulman stepped down from their respective podiums to greet well-wishers who flocked to the front of the room.
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