Editor’s note: This is the second in a two-part series which takes a look at the issue of medical tort and insurance reform.
By RENEE JEANDaily Journal Assistant Managing Editor
Tort reform is a misnomer, says this trial attorney, and poses serious problems for the poor when it comes to gaining access to the court system.
Kenneth A. Seufert, a trial attorney with a practice in Farmington, said he understands that rapidly increasing malpractice premiums are a serious problem facing doctors in the community, but he believes capping non-economic damages for pain and suffering will be neither wise nor effective.
“What this is going to do is create a class of super citizens no longer accountable to our jury system,” he said.
He does not believe there is an overload of frivolous lawsuits.
“A lawyer who would file a frivolous lawsuit is a lawyer who will soon go broke,” he said.
Not only does it easily cost $50,000 to $100,000 to litigate a case of medical malpractice, but the odds of winning are only 30 percent.
“Litigating is tough, tough, tough,” he said. “I do not have anyone paying me for a frivolous law suit. A jury is not going to make an award for something trivial. It just does not happen.”
Many people will mention the lawsuit involving hot coffee served by a McDonald’s restaurant as an example, but Seufert says there is more to that case than many people realize.
According to the facts which came out in the trial, the chain was serving its coffee at 180 to 190 degrees Fahrenheit, which is hot enough to cause third-degree burns in two to seven seconds.
Not only was the company aware of this problem — documents obtained from the company showed more than 700 people had been burned by the coffee from 1982 to 1992 — but the company had no intention of reducing the beverage’s serving temperature despite the repeated injuries of customers. They did not warn their customers of the possibility of injury, even though they knew of the problem.
The jury in the case actually found McDonald’s 80 percent responsible for the incident and the elderly woman who was burned 20 percent responsible.
Initially she was awarded $2.7 million in punitive damages — however this was later reduced to $480,000.
The woman and the chain store entered secret negotiations to arrive at a new settlement, the details of which are not known.
“Initially all that woman really wanted was for them to pay the medical bills,” Seufert said, “but they told her to go away.”
Seufert said a law practice is just like any other business. “If you don’t work, you don’t get paid,” he said. “In order to win these cases, you have to invest money into expensive experts.”
He posed as an example a man who was poor and not making a lot of money, whose medical bills won’t be catastrophic in the future, but who is going to face pain the rest of his life because of a negligent mistake.
The man might have a perfect case otherwise, but because pain and suffering is capped, there is no incentive for an attorney to take the man’s case, and a good many reasons not to pursue it.
The odds are against winning the case, first of all, and since the pain and suffering damages have been capped, it is a case that is just not worth pursuing even though the man’s complaint about his life of unending pain is legitimate.
Seufert said he believes there are several things that would be better to focus on for fixing the increasing malpractice premiums.
Venue shopping is something he believes could be looked at — though he was skeptical that most doctors, if they think about it, would really want the cases tried in their own communities. It would make it more likely people would hear about the matters.
He thinks the nurse practitioner program should expand, and he believes employer-held insurance pools can help create competition, which he said is lacking in the state. Only four companies are writing malpractice policies, area doctors have said.
Doctors need to take the time to develop a relationship with their patients and stop being in a hurry. Seufert told a story about a woman who had been through a house explosion. She went to see her family practitioner because she couldn’t stop thinking about what had happened and could not sleep at night.
“That doctor told her it was no big deal, that what she had gone through wasn’t nearly as bad as what soldiers go through in a war. She just needed to ‘toughen up.’ Stuff like that makes people mad,” Seufert said.
Seufert also said third parties like insurance companies should not be second-guessing doctors all the time. If a doctor believes a patient needs a particular medication, the third party, who knows nothing about the patient, should not be able to interfere.
“There are a lot of reasons for the problems facing doctors,” Seufert said, “but it is not the result of lawyers filing frivolous law suits. I do not have time to do a frivolous law suit.
“Whenever someone says something about that, I ask them to tell me about a frivolous suit. I will research it and get back to them. It usually turns out there was more to the story.”