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Greedy Trial Lawyer

Surgeon Sid's Heart-Wrenching First Malpractice Lawsuit

November 12, 2006

By Greedy Trial Lawyer

Comments (8)

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Category: Ho Hum

Time to tune the violin. Another doctor is sharing his personal agony over his first medical malpractice claim.

Sid Schwab, at SurgeonsBlog, is the agonizer of the moment. I'm a pretty-much retired general surgeon. After a long and busy time in practice, I've taken a deep breath. And, apparently, decided to solicit as much sympathy as possible for himself and his fellow docs.

Nice try, Sid. I can't wait to hear more about how the referring doctor, the hospital and the nurses turned on you.

Thank you, at least, for assuring us it was not a frivolous case.

Losing My Virginity; Part One

In all my years of practice, my dad called me at the office only twice. The second was to inform me of a horrible family tragedy. The first -- well, I guess in a small way you could say it was the same.

"I hear you joined the club," he said.

"What?"

I hear you joined the club," he repeated. "I read in the paper today you're being sued." I nearly dropped the phone and fell over.

But it hit me like... well, it hit me like a lawsuit. And it was only the first blow in a series that lasted over a couple of years, wrenching me back and forth, up and down, tearing me apart in every possible way. Robbing my sleep, souring my outlook, breaking my cherry in the most bloody of ways....

So now I knew: it was a horrible case, the worst case ever, one which gave me and will always give me nightmares, whether I'd been sued or not....

Every hour of the day and night when I wasn't required elsewhere, I was at his side in the ICU or at his family's. It was agonizing for everyone, and it was soon clear there was no chance of survival. When he died, I felt drained for weeks....

The main issue in my mind was whether I should have operated immediately when I saw him...

It was and remains the worst case of my career: a death in a previously healthy person...

It would have been on my mind forever, no matter what. But with the lawsuit, I found myself in a battle against people I thought were my allies: the referring doc, the hospital, a battery of lawyers, nurses. It opened my eyes, I suppose, to the realities of the world of medical malpractice. Knowing reality is good, so they say. But it also shut my heart part way to the love I'd had for what I do.

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» Sid Schwab (SurgeonsBlog) on getting sued from PointOfLaw Forum
His first: "news of the lawsuit was in the newspaper before anyone had had the decency to contact me. What kind of people act like that?" Not that everyone sympathizes: "Ho hum," says Greedy Trial Lawyer, who read the first... [Read More]

Tracked on November 15, 2006 09:50 PM

» Sid Schwab (SurgeonsBlog) on getting sued from Overlawyered
His first: "news of the lawsuit was in the newspaper before anyone had had the decency to contact me. What kind of people act like that?" Not that everyone sympathizes: "Ho hum," says Greedy Trial... [Read More]

Tracked on November 15, 2006 09:52 PM

Comments

It's oil and water. You'll see it your way, I'll see it mine. If by non-frivolous you mean a case that can only get as a plaintiff's witness a professional and idiotic testifier, and one about which a panel of experts convened by the medical board and the insurance company made the recommendation, after grilling me and reviewing the records, that the case be vigorously defended, well then, we fully understand each other. There are bad outcomes -- inevitable when no decision we make has a 100% guaranteed result -- and there is malpractice. Until the system recognizes the difference, people like you and me will always disagree. I guess we can leave it to our respective readership, and the gods of fairness (who seem to have reappeared on Nov 7) to unravel the mystery.

Posted by: Sid Schwab at November 12, 2006 01:23 PM

the funny thing is that legal system itself is less than perfect. as a matter of fact. But the success of this govt. mandated institution depends on the quest for (im)perfection for the rest of the society .

Posted by: Anirban at November 15, 2006 10:36 PM

Greedy: Try not to reach 40, when an organ will fail every five years. Tell your doctor about this blog. No doctor should treat you, to teach you respect.

In any case, I hope you will join me in supporting an end to all lawyer and judge self-dealt immunities. I oppose all tort reform, including any limit on punitive damages set by the Supreme Court. If torts benefits safety, and improves the product or service, why deprive the tortfeasing, careless lawyer of the great benefits?

Come on, let's lobby the legislature for this statute:

"The Rules of Civil Procedure and the law of torts of this state apply to the licensed lawyer."

Posted by: Supremacy Claus at November 15, 2006 11:08 PM

Ho hum - just another miscarriage of justice. Nothing for a lawyer to worry about.

Posted by: Deoxy at November 16, 2006 01:19 PM

I lost my sympathy for doctors years ago when I read about an ob-gyn complaining that his medical malpractice premiums had risen to 25% of his take-home. Going by the numbers, which were given, his take-home was well into six figures, and that is the side of the story we never hear in these sad tales from suffering, put-upon doctors.


Uh, you can keep a roof over your head, the lights on and food on your table with that amount of income. Medical costs have risen way faster than the cost of many other things. It's got to be due in part to doctors' pay; it sure as hell ain't because of the support staff in the health industry - I haven't had a raise in four years, and my annual income is less than that mentioned doctor's malpractice premium.


Medical insurance for my family would take nearly half my net pay. That's impossible

"Total financial ruin and a lifetime of indebtedness" because of a twist of fate? Welcome to the fears we ordinary people live with, Dr. Schwab.

Posted by: disgruntled at November 17, 2006 12:05 AM

disgruntled: Doctor pay is decidedly NOT the reason for escalating costs: the fact is that every payor of doctors (Medicare, medicaid, all the insurers have cut by more than half -- up to two thirds -- the fees they pay to doctors, and have made it illegal to bill for the difference. You can look it up. So the result is that year by year, doctors have significantly to increase their work just to keep from making less. Most in fact do make less than ten years ago. I happen to know a couple of million-dollar a year lawyers: they raise their hourly fees, and collect it.

I don't know what a fair income is. I know that medical support is invaluable and underpaid. Like teachers, trash collectors, and many other people without whose work society would crash to a halt. On the other hand, I routinely worked 80 hours or so a week, and spent seven years training to get there. From that point of view, I ought to make more than you. From the point of view of what would happen without us, garbage collectors ought to make more than us all.

Posted by: Sid Schwab at November 17, 2006 09:55 AM

In regards to torts,

Where are all of the legal malpractice cases? Why is it that poor outcomes associated with litigation (e.g...telling client to turn down settlement and go for the big award, but then losing case) doesn't result in legal malpractice.

We all know that the overall quality of lawyers (ethics, IQ, etc.) is sub-par to that of medicine (I base this on surveys completed by the american populace over several decades timeframe which consistently show lawyers in general, and trial lawyers in particular at the bottom of the barrel), so what gives? Where is the outrage that lawyers are getting off scott-free everyday with poor representation, misrepresentation and legal malpratice.

Posted by: JAK at November 17, 2006 03:31 PM

JAK: You are obviously not a lawyer aware of the total rigging of the rules in favor of the criminal cult land piracy enterprise that is the lawyer profession.

If you are client of the lawyer, you have privity (a legal economic relationship - you paid a fee). You may sue your lawyer for legal malpractice. However, unlike other plaintiffs, you have to prove the elements of torts, then this zinger. Once you have proven the lawyer has deviated from professional standards of due care, you have to prove you would have won the original case. This is a trial within a trial. Let's assume the odds of winning a case is 50%, then the odds of wining a case plus the original case is 25%. If the odds of winning the malpractice case is 25%, and the odds of winning the original case is 50%, then the odds for the tort feasing lawyer defendant is 12.5%. You might enjoy putting the lawyer through the process he puts everyone else through, but don't plan on getting compensation. Malpractice premiums for lawyers are really low, as an indicator.

If you do not have privity (not having paid the lawyer a fee), but were on an opposite side from the careless lawyer, then you must go to misuse of a civil procedure or malicious prosecution. These do not require the showing of negligence (carelessness), but malice (knowing, intentional). Short of a document or a verbal statement in front of witness that the lawyer wanted to damage the third party on purpose, you have no recourse. Again, no other product or service provider have these obstacles to accountability protecting them. Here is a very rare example. Naturally, the offended person was another lawyer. So, they kept it in the family.

"... Bill Lerach, had said of Fischel: "That little f----r is dead and he'll never testify again." In one of the most dramatic moments of the trial, this videotaped testimony was played in a darkened courtroom just before the closing arguments."

From:

http://www.appellate.net/docketreports/sc042699.asp

You need a taped threat basically.

If you are suing the government, a 99% lawyer run criminal enterprise, you have all kinds of sovereign immunities that are impossible to overcome. If you manage to overcome these, you might get injunctive relief (an order to stop the damaging activity), but no money. Small towns and counties have fewer self-dealt protections.

There used to be a sanction in Rule 11 for frivolous filings. They changed it to allow a 21 day take backsies period. If the judge deems the submission frivolous, the lawyer gets 21 days to take it back and change it or not re-submit. Does any one else get a 21 day period to take back a dangerous condition or act? No.

Lawyers have it totally rigged. These riggings are themselves lawless. The lawlessness of the lawyer justifies citizen direct action against the lawyer and its corrupt running dog, the government.

Posted by: Supremacy Claus at November 18, 2006 02:13 PM

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