Current Trends in Medical Malpractice

Simon D. Murray, MD: What is the trend in malpractice in the United States over the past 20 years? Have the cases been escalating? Do we have a malpractice crisis?

Glenn Bergenfield: I’m not a doctor, so I would say, no, we don’t have a malpractice crisis. There are inefficiencies in the system that are expensive, as I said before. There are sometimes results—let’s say 10% or 20% of the time—that are hard to justify. In all the studies I’ve seen, doctors win the overwhelming majority of cases, unlike any other defendant, and certainly unlike lawyers and corporations. Doctors come into courtrooms with lots of goodwill, and they win cases that they shouldn’t win. There are statistics where they’ve had doctors review the malpractice case and say, “This is a very strong malpractice case.” Doctors win almost 60% of those cases because of the goodwill that doctors bring into a courtroom and have with the juries.

Simon D. Murray, MD: Of 100 cases that are initiated, how many are settled before they even go to court?

Glenn Bergenfield: The statistics aren’t as clear on that. There’s a registry now. The better cases are oftentimes settled. Still, the overwhelming majority of cases, not just those that are tried, are knocked out. I can also tell you that the people who do medical malpractice on a regular basis might take 1 of 100 phone calls because they’re expensive, hard-fought, and extremely well defended. As a generalization, the defense bar for doctors is very capable, and as you know, I’m not somebody who thinks lawyers are all so great. That bar, as a generalization, is excellent. They work really hard. They understand the science. They like doctors, and they’re willing to actually go to trial and not just talk about it.

Simon D. Murray, MD: Yes, I would agree with you. I’ve met many defense attorneys, and I’ve found them to be excellent, and they know a lot about medicine too.

Glenn Bergenfield: Yes, and they know a lot about jury trials. They do a good job protecting the doctors, even at times when the doctors deserve to settle the case or lose.

Simon D. Murray, MD: You mentioned that there are cases in which doctors have committed egregious errors. Do you have an example of any such case that you’ve been involved with in which a doctor may have done something that was obviously not correct and gotten off?

Glenn Bergenfield: Yes. A lot of trial lawyers have that 1 case, or those 5 cases, in which they say, “What the hell happened here? What did the jury do? What were they thinking?” I’ve got a story for you.

I had a case where my client was sent home from the hospital after a bowel replacement. It turned out, when you looked at the records later, that there was most likely a brewing infection. There were some indications that there was an infection starting, but it was Friday, and they sent him home. Over the weekend, his wife called twice and said, “He’s getting sicker. What should we do?” The doctor didn’t respond to them. When he came back into the hospital on Monday, they couldn’t stop the infection, and he died a painful death.

The doctor changed the records in his office to say that there were no calls made and initially testified that there were no calls made. We got the phone records and were able to prove that the calls were made to his office. His record still had this lie in it—that’s the only word you can use. When I put the doctor on the stand after going through all that, I said, “You changed your records to say that he didn’t call you, but he did.” He had to admit that yes, he had. I said, “So you lied,” and he said, “Yes.” Then I asked the question you’re not supposed to ask, “Why did you lie?” They tell you in law school, “Don’t ever ask that question.” I’ve asked it a lot. Many times, it’s gone extremely well, but this isn’t that story.

I said, “Why did you lie?” And he said, “Well, people feel badly. I felt badly when my patient died.” I said, “That’s why you lied.” He said, “Yes.” Just as in My Cousin Vinnie, I thought, “I’ve got no more questions for this bum.” That was the end of it. I thought, “I’m going to win this case, and I’m going to win it fast, because there’s nothing much to talk about here. He killed the guy and lied about it.” Some would say that you need both. You need not only malpractice but also to show that the doctor is a bad guy to win a case. I’m not sure that’s right, but it’s a decent rule.

I thought they’d be back in a half hour, and they were. I thought I’d win, and in fact, I lost the case. We got on the elevator afterward, and I was stunned—furious, stunned, both. I ran into 1 of the jurors. He got on the elevator and he smiled at me. You’re not supposed to talk to jurors. I don’t want to say too much more about that afterward, but I was so nonplussed by this that I leaned in close and said, “What was that about? What did you do?” He just sort of smiled and said, “You know, people do feel badly. The doctor felt badly that the guy had died.”

I still sometimes wake up in the middle of the night and think about you some things—what happened there? This is 25 years ago. I still can’t get over that. I still can’t explain it. That’s what happened. If a lawyer said, “Yeah, I changed the records and I lied about it because I felt badly that I killed the guy,” he’d end up in jail or something. But the doctor just went home or went back to his practice.

Simon D. Murray, MD: Yes, that seems illogical.

Glenn Bergenfield: Yes. It was a bad result, no doubt.

Transcript edited for clarity.