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Throwing the Book at Doctors
By Matthew Rose
Special Correspondent
 Nine
A.M. in Manhattan Supreme Court. A lone lawyer is setting on a bench,
tapping on his laptop computer:
Paul Austin walked out of the medical examiner's office and took a deep breath of fresh air. He had spent two hours watching the autopsy. Everybody there had been so cheerful. It didn't matter to them that the body had been another doctor.
"It's mostly an autobiography," says the budding author, Bruce Clark, a veteran medical malpractice lawyer. "But in the book, I get to kill the doctor," he jokes.
Clark is a member of a small cadre of lawyers who make headlines suing and defending doctors in multi-million-dollar malpractice cases.
The business of suing doctors soared in the 1980s, with one major insurance company reporting claims increasing from 11.3 per 100 doctors in 1981 to a peak of 17.8 per 100 doctors in 1985. Since then, claims have dropped off to about half that level, according to the American Medical Association.
Still, a 1990 study by the American College of Obstetrics and Gynecology found that nearly 90 percent of all obstetricians were sued once in their careers; 30 percent of all doctors were sued once. Malpractice Insurance costs remain high, with doctors nationwide paying an average of $15,900 a year in premiums in 1989; some obstetricians pay up to $200,000 according to the AMA.
The AMA says that malpractice cases are on of the largest factors behind soaring health-care costs.
Doctors have "ordered $15 billion in supplemental tests to ward off or defend themselves in the event of lawsuits," says James S. Todd, a general surgeon and executive vice president of the AMA. "Even if a case is settled in the patient's favor, only 38 cents of every dollar goes to the injured person, while 60 percent goes to administrative, legal and court costs."
But Clark counters that the benefits of his practice outweigh the price.
"I think we've actually increased the quality of medical care given," he says. "Patients have a better chance of surviving and living due to the collaboration between doctors and their staffs before they undertake procedures. Records by nurses, for example are much better kept now than 10 years ago."
A Columbia Law School graduate, Clark cut his courtroom teeth at a New York law firm in the late 1960s, but also volunteered at a halfway house to defend the legal rights of drug addicts.
"It was the height of the Vietnam War, and I also volunteered for the Emergency Civil Liberties Committee, representing draft dodgers," he says.
Clark, now 51 and a resident of Sands Point on Long Island, has been working the medical malpractice beat for about 23 years.
To win a case, he says, a malpractice lawyer must have a good grasp of the underlying medical issues, biological functions and surgical techniques. And to figure this out, he has to spend thousands of dollars on his own medical education.
"I have one of the most expensive medical educations in the world," Clark says. His "study" of cardiology for example, cost about $10,000, he says. He also took a neuroanatomy course at New York University Medical School.
Last December, Clark was preparing for a family trip to Hawaii when the phone rang. It was the attorney for the estate of Andy Warhol. He wanted Clark to represent the estate against New York Hospital, where Warhol died of cardiac arrest in 1987 after he was admitted for a gall bladder removal.
"I was called to do the case 10 days before trial and spent every waking moment on it," Clark says.
Clark argued that Warhol was "stressed with excess water in his body" and that he essentially suffocated"--a direct result of the hospital's negligence. The Warhol case did not go to jury, but the estate asked for between $16 million and $20 million and settled, according to a recent published account, for $2.95 million.
Like most malpractice lawyers, Clark charges his clients on a contingency basis---no upfront fee, but a sliding scale that ranges form 30 percent of the first $250,000 in damages awarded to 10 percent of anything over $1.25 million.
While Clark says he generally makes "a seven-figure" annual income, not all cases involve glamorous patients.
"In 1988, I had a case where we exhumed a body buried for six years," Clark says, "My witness, a doctor, said that the aorta in this case had a dissecting aneurysm; their doctor said he died of heart failure. There was only one way to find out and so we exhumed the body and took it to Suffolk County medical examiner's office."
It looked "as you might imagine---like you would see in horror films," Clark says. "But, there was a plastic sheet over the torso and that area of the body was pretty well preserved." The medical examiner found Clark's expert was correct; he won the case.
Clark's record is pretty good, by his own estimates. He says he wins or settles more than 90 percent of his cases. In part, he says, that's because few practice lawyers are willing to take cases they might lose.
"I turn down 95 percent of the cases brought to me," Clark says, "usually because there's not enough proof, or the injury was not serious enough. A lot of people come to and say something terrible has happened that hasn't happened."
In cases that do go to trial, some 80 percent are won by doctors, according to Clark.
"Doctors will usually only go to trial in a sure thing." He says, "Otherwise, they'll settle"
One reason people come to Clark is that "doctors don't take the trouble to explain their illness to them." he says.
Bernie Siegal, an assistant clinical professor of surgery at Yale University Medical School and form general and pediatric surgeon, generally agrees. The main reason patients sue is that: doctors don't talk to their patients, that doctors are insulted if their patients got a second opinion, and are generally untrained in the "soft subjects" of patient care, says Siegal, author of "Love, Medicine and Miracles" a book about doctor-patient relationships.
While Siegal says the malpractice crisis has made a mess of "defensive medicine," but adds that some good has come from it: "The way you change the system is through pain. We need these difficulties; they get the buttons pushed."
Recently, Clark settled a 10-year-old case of a New York City bus driver who had a tumor in his pituitary gland. When the driver first went to his insurance group's doctor, he couldn't figure out what was wrong. Over the next year, he lost about 90 percent of his vision and was unable to drive a bus. He had to take a job cleaning out bathrooms.
"We've argued that his condition could have easily been prevented," Clark says. The insurance company settled for just under $1 million.
When Clark loses a case, his client sometimes falls through society's safety net, he says.
In a case involving a brain-damaged infant, for instance, Clark argued that the doctors involved in the delivery were negligent. The child, now 10 years old, has an IQ of 50, suffers from mild motor problems and seizures, and will need constant supervision for the rest of her life. "The jury, when announcing their verdict, was crying---they had been deliberating over two weeks," Clark says. "They didn't find for the child. The state provides for her until she's 21 and after that she would have to get accepted by a charitable organization. And if not, I don't know what."
While waiting for juries to decide or judges to see him, Clark, the lawyer-cum-author, has time to work out plot twists. In his current work in progress, a doctor dies in an emergency room and the protagonist lawyer, Paul Austin, comes in to figure out why. "I get even with judges that are unfair and I'm able to say things I couldn't say in court," he says. "I think I'm calling it 'Sudden Death.'"
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ARTICLES:
Throwing the Book at Doctors
- This article, published in Sunday Newsday, profiles Bruce G. Clark
and his profession.
Million Dollar Verdicts -
Written by Bruce G. Clark, this article is a discussion on large
verdicts in malpractice lawsuits. Clark details which aspects of
a case lead to large verdicts, and provides illustrations from his
experience.
Specialization, Referral Fees and Professional
Responsibility - An examination of specialization
in law. This article, also written by Bruce G. Clark, describes
the importance of specialization and its mechanics, paying particular
attention to referral fees and their role in ensuring that plaintiffs
are properly represented.
Lawyer Duty -
Bruce G. Clark describes his experience when he is called upon for
jury duty.
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