CHARLESTON – I read with interest the recent Charleston Gazette-Mail editorial on quality of life issues relevant to West Virginia’s law placing arbitrary caps on damages in medical malpractice lawsuits, and I wanted to expand on your thoughts if I might.
This year marks my 40th year of practicing law, and in that time I have tried over 300 jury trials to verdict including many medical malpractice cases in states throughout America, and because of that experience I have gained some insight into lawsuits which I would like to share.
First and foremost, America has two general systems of justice available in our courts: the criminal justice system and the civil justice system. Not surprising given the budget cuts in education across America, most Americans cannot answer a simple question about these two justice systems: What is the hallmark difference in behavior at issue that causes one case to go to criminal court and another case to go to civil court?
Lees
The answer is simple: intent. In America, as in all modern civilizations, if you intentionally cause harm or intentionally do bad things, you will end up in the criminal justice system, in which the punishment can be jail. The hallmark therefore of our criminal justice system is intent, and people who intentionally deviate from civilizations’ established norms for appropriate behavior end up in jail.
But where do cases go where there has been injury or harm that was not intentional? And the answer of course is the civil justice system. Our brilliant Founding Fathers gave us a personal responsibility justice system whereby companies and individuals must accept some responsibility for causing unintentional harm, with the remedy or punishment being financial responsibility for the harm. And while I understand that insurance companies and certain American citizens would like nothing better than to do away with personal responsibility for unintentional harm, the reality is that the overwhelming majority of Americans support the concept of being financially responsible if you unintentionally run a red light, crash into someone else, and break their legs.
For some reason, some Americans believe doctors and hospitals should not be subject to these same laws as the rest of America, and that doctors or hospitals should only be responsible for harm if such harm was intentionally caused. Of course, if intentional, the case would be in criminal court and the doctor would be looking at jail. By definition, a medical malpractice case is an allegation of harm that was NOT intentional, but rather resulted from carelessness and/or not following the usual protocols for that medical service.
This brings us to the issue of how we as a country resolve issues of intentional and unintentional harm caused in our society. Most of us understand that we use a jury system to resolve these issues, but what some of us fail to understand is the precious gift the American jury system was and is to us, courtesy of Madison, Jefferson, Hamilton and Adams. The idea that a group of citizens, drawn from different backgrounds with different educations and different intellects, can resolve these issues if everyone can agree to the resolution, is breathtaking in its implicit trust in the people of a country being capable of managing the conflicts that arise in any civilization. I shudder to think of turning the power of such decision making over to one single individual, as some Americans now advocate — as if anyone would want the nut job running North Korea in charge of decisions affecting our companies or our lives!
Given the brilliance of our Founding Fathers in crafting our Constitution, how in the world did we end up with laws imposing caps in certain civil lawsuits? Because the underlying premise of such laws is that we cannot trust jurors, meaning we cannot trust ourselves, to make good decisions in certain cases as we resolve these conflicts through the jury system.
The hypocrisy of the politicians that propose and pass these laws is that they trust jurors implicitly when it comes to decision-making in criminal cases. If jurors decide on a verdict of guilty of Murder in the First Degree, with no mercy, West Virginia legislators clearly support such jury decision-making and pass no laws that interfere with those decisions. But somehow, when those same jurors unanimously decide that the appropriate value to place on the losses suffered by an innocent victim of careless medical care is a sum, certain legislators suddenly claim we cannot trust those jurors to make these much more important decisions. And thus a jury in which every single citizen agreed to value the loss of quality of life caused by such carelessness to be several million dollars, suddenly is stripped of its decision-making power by a small group of politicians.
Let’s be clear why it happens — and it has nothing to do with trust of juror decision-making. Instead, it has everything to do with protecting insurance companies, who generally pay these verdicts and use doctors as their minions to march on Charleston in order to grant them protection from jury decision-making. And by doing so, the insurance company profits increase and corporate America happily rewards such legislators with campaign contributions.
What is the function ultimately of a jury if fault is found in a civil lawsuit? It is to use the collective wisdom of the individual jurors to sit as appraisers and attempt to place a value on the losses that have occurred to the victim as best they can. If you are blessed with good health, the ability to walk, play golf, and hike with your grandchildren, and suddenly you are confined to a wheelchair or bed for the rest of your life through the carelessness of another, you have certainly suffered a loss in the quality of your life.
And the value of that loss should be set by jurors, and the company or person who caused that loss should be penalized with the financial responsibility of paying for that loss, usually through the insurance company they have arranged to protect them. To permit them to avoid that responsibility in medical cases when the rest of us accept that responsibility in living our daily lives (car wrecks, etc.), is one of the greatest shams that have ever been perpetrated on the citizens of West Virginia.
Finally, let’s make certain we all understand the actual finances of a medical malpractice case as it now works. When the doctor or hospital is sued, their insurance company hires attorneys to defend the case and the insurance company pays the legal fees and expenses of the defense, a cost which will be in the hundreds of thousands of dollars if the case is legitimate and goes all the way to trial. The victim of the careless medical care cannot write a check to an attorney for hundreds of thousands of dollars to cover the cost of the legal fees and expenses, so the attorney usually agrees to work on a contingency fee basis. What exactly does this mean?
It means the attorney agrees to do all the legal work without any compensation during the pendency of the case and agrees he/she will only be paid if there is ultimately a recovery for the client. So, the attorney ends up working a minimum of 1,000 hours (usually more) with no paycheck unless or until the case is successfully resolved. If it isn’t, the attorney never gets paid. It is the risk the attorney takes when he/she takes on the client.
But how are the expenses paid on behalf of the victim? Expenses in a typical medical malpractice case almost always exceed $100,000, as simply hiring competent doctors to review medical records and render opinions is an extremely expensive proposition. These expenses are paid by the attorney. So, not only does the attorney not get paid for the legal work unless or until the case successfully resolves, but the attorney also pays usually around $100,000 or more out of pocket to pay the expenses of the case. And if the case is not successful? Then the attorney has worked over 1,000 hours without any pay and is out over $100,000, which is not repaid by anyone.
What happens when the case does successfully resolve? Using the case discussed in the Gazette-Mail editorial, the jury returned a verdict that included $800,000 in economic medical costs, and what will now be a capped amount of $650,000 for the value of the loss of health and quality of life suffered by the victim of the careless medical care. Total verdict after the cap law is applied: $1,450,000.
How is that money, when paid by the insurance company for the defendants, distributed? First the contingency legal fees are deducted (keeping in mind that the attorneys for the victim have been working for usually over two years and more than 1,000 hours without compensation, while the defense attorneys have been regularly paid their hourly rates by the insurance company during this same time period). A typical contingency fee is one-third, which means that about $480,000 of this sum goes to the victim’s attorneys as legal fees. And, if the total attorney hours worked are 1,500 hours, which is more typical on a case of this nature, the legal fee payment works out to a little over $300 per hour in legal fees, far below hourly legal rates now charged in the larger American cities.
The victim also must repay by law any monies advanced by the attorney for the expenses. Assume the expenses were approximately $150,000, which again is typical in a case of this nature, and the net amount left for the victim is approximately $820,000. But does the victim get to keep that amount? Heavens no — again, something most Americans do not seem to realize.
Someone either paid those medical bills or they are still owing to the medical provider (or will be, if they are future medical bills). No matter whether that someone is a private health insurance company, Medicare, Medicaid, or Workers Compensation, all of them will have a lien for repayment of the amount they paid for such medical care. Meaning, the victim must pay back those health care providers, out of this $820,000, the amounts paid by them or that will be paid by them. If no one paid these bills, then the actual hospitals or doctors need to be paid out of this money.
The medical bills determined by the jury were $800,000. The amount left to the victim to pay back this money, which is required by law, is $820,000. Even if this amount is discounted by the medical providers such as Medicare or Medicaid, how much of the remaining $820,000 is actually left for the victim? And the answer is, not much.
Politics has intruded upon pretty much every aspect of our life today, and nothing is more dangerous in politics than a politician that explains a law in a disingenuous and dishonest way. Medical malpractice cap laws are not passed because we cannot trust juror decision making. If that were the case we would not let murder convictions stand that were made by those same jurors. Medical malpractice cap laws were passed to protect the finances of insurance companies. Those caps have been ruled to be an unconstitutional intrusion by politicians upon our rights as guaranteed in our Constitution by several states — but not West Virginia.
And one last thought: If these are such good laws, why are judges prohibited from explaining the details set out in this article to jurors during a trial? No juror is permitted to know about the cap laws during a trial, nor are they allowed to know about the subrogation liens of the medical providers, the legal fees of the attorneys or the expenses advanced. In essence, they are forced to operate completely in the dark in the 21st century, and insurance company executives and stockholders are laughing all the way to the bank.
Lees is a member of the law firm of Hunt & Lees, which is based in Charleston. This op-ed originally appeared in the Gazette-Mail.
