Brain: I disagree with cheaper to settle. Let’s say, there is some chance of losing $100k in court. The offer is to settle for $10K. Pretty irresistible, no? Insurance saves on trial cost, on a risk of an adverse verdict. The doctor goes back to work, forgets the case. He spares self 1000 hours of worry. The $10K is from other people’s money. He can even admit to no malfeasance and demand that the settlement not be reported to the National Practitioner Data Bank.

How can anyone lose by settling?

The lawyers learn from case experience. Thus, across the country, dozens or hundreds of cases will get filed to make an easy $10K.

One should settle only if one feels one has made a mistake that hurt a patient.

From a patient’s point of view, it’s ambiguous. Having run in to my share of none-too-competent doctors (including the one who said my mother was a crock — his term! — while she was on her deathbed), I know the fact that a person is bright enough to get through the rigors of medical school doesn’t necessarily make her or him competent to practice the art & science of medicine. But on the other hand, absent obscene insensitivity and brain-boggling stupidity, doctors, being human, make honest mistakes for which neither they nor we (as none-too-competent patients) can be blamed.

Economics be damned, I guess if I were a doctor I would not fold my tent and creep away unless I had committed an error that was truly the result of incompetence.

One wishes the system were better. But given what we have to work with, we all need to stand up for what we think we have done right. Or at least NOT done egregiously, pig-headedly, stupidly wrong.

Let’s say, there is some chance of losing $100k in court. The offer is to settle for $10K. Pretty irresistible, no?

The thing you are forgetting is that it will cost $10K (or more) just to defend against the suit, and that’s if you WIN.

AND there’s often a penalty for being sued too much, even if you win them all (in terms of med-mal insurance).

The physician’s position is thus lose-lose.

D: The lawyer has to spend money to bring a claim. So, a track record of success encourages more of the same.

I propose not just the standard defense. I suggest hiring a private lawyer to put the fire under the chair of the underpaid, under-skilled insurance defense lawyer. Every possible preliminary motion should be filed. If a motion fails, the defense attorney should know, she will be fired. That is the Walmart system. That way, the defense attorney does not get rewarded with trial fees for failing pre-trial motions.

I also would absolutely demand sanctions from the judge against the plaintiff attorney and plaintiff expert for every infraction. One has to use every word said or written in gotcha. If the defense attorney refuses to write these, because of needing the fees of a trial, I would write the complaints to the judge personally. Ordinary language is fine. For example, one could say, the claim in the resume of the expert is false. Then submit the highlighted resume, and the evidence that the claim is false. The judge will find that helpful. Do not make the judge do work. He is not allowed to do your work of advocacy, nor to do any other investigation. If he did, he could be impeached. Lay out the evidence in one communication.

One should also file ethics charges with the respective licensing boards, against both. These valid complaints to insure the other side lives with uncertainty as they have insured the innocent defendant has to. I oppose frivolous complaints against the plaintiff side.

Doctors should settle cases if they are sure they made a harmful mistake, and not to avoid the conflict of litigation. That is a legitimate purpose of malpractice insurance. I oppose a vigorous defense to maintain pride.

The extra effort shuts off future lawyer cottage industries. I am disappointed when pharmaceutical companies take the short sighted cowardly route. I may try to alter the balance of fear by suing them as a shareholder, to whom they owe fiduciary duties to defend these bogus lawsuits.