Public Health Law Map - Beta 5 - Medical and Public Health Law Site

juries will disregard scientific evidence in favor of emotion, especially in cases that
involve difficult issues of statistical proof, such as the breast implant cases or
environmental toxin cases.
Cases go to trial when either or both parties would rather risk a loss than take a
settlement on the terms available. Physicians accused of criminal Medicare fraud
often fight, even when their chances of winning are very low, because a plea will
cost them their medical license and the right to work in medical care. Conversely,
institutions charged with Medicare fraud usually settle because the government sets
the fine they must pay low enough so they will not go out of business, but the
mandatory fines that accompany a guilty verdict will bankrupt them. The reporting
requirements of the National Practitioner Databank discourage settlements in medical
malpractice cases because the settlements cannot be made confidential.
2. Incentives against Settlement
A candid defense attorney once described a medical malpractice case as an annuity,
bearing interest above the prevailing rate. The longer a file is open, the longer the
law firm can draw that interest. Every few months additional court papers can be
filed. Client reports need to be done on a regular basis. Each piece of paper and court
appearance that the defense attorney can generate, or force the plaintiff’s attorney to
generate, results in substantial fees. This approach is usually described as being
“tough” on the plaintiff. Being tough usually means forcing court appearances and
motion practice rather than coming to agreement.
Most malpractice lawsuits settle before a final jury verdict. Unlike attorneys who
defend criminals, malpractice defense attorneys have an incentive not to cooperate
with the plaintiff’s attorney in reaching a settlement. Cases are often settled at the
courthouse door because that is the longest the defense can delay before running the
risk of a trial. Defense attorneys are risk adverse; they would rather settle a case than
run any substantial chance of losing the case. This is related to the public relations
aspects of litigation. A successful defense of a malpractice lawsuit is not news, but a
$1 million verdict will attract publicity. A case that is settled is not lost and usually
does not generate adverse publicity. From an earnings perspective, the ideal defense
case is one in which the defendant was negligent enough to justify settling the case
but careful enough to justify delaying that settlement to the bitter end.
3. Delays in Getting to Trial
Most of the delay in criminal cases takes place before the indictment. The
government may investigate a case for years before bringing the indictment, but once
the indictment is brought, there are limits on how much time the government may
delay the trial of the case. Although the defendant has some latitude in obtaining
additional time for preparation, the limits on the discovery in criminal trials mean
that there is less reason for delay than in civil trials. Once the defense is ready, the
case is set for trial and takes precedence over pending civil cases.
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