Comstock's magazine 0219 - February 2019 - Page 50

n LAW “Even very well-established, good plaintiffs’ firms don’t do medical malpractice anymore. They just decided it’s too risky — it’s too expensive to litigate.” – Neal Lutterman, partner, Wilke Fleury (continued from p. 48) include awards designed to address real but hard-to-mea- sure effects like pain and suffering, depression and anxiety, and scarring or disfigurement. The measure’s effects are felt by a specific group of plaintiffs, say malpractice lawyers: those who suffer seri- ous outcomes but can’t show any financial impact. In cases where lost income isn’t a factor, $250,000 is likely the maxi- mum award to the patient’s family, says Cutter. That makes the case less attractive to attorneys, who usually are paid a percentage of any award they win in malpractice claims. “It’s very difficult to pursue that case economically by the time you hire experts,” Cutter says. Expert-witness costs in medical cases appear to be ris- ing, a factor that doesn’t get much attention in the falling case numbers, says Neal Lutterman, a partner at Wilke Fl- eury in Sacramento, who defends health care providers in malpractice claims. That cost driver, coupled with the cap, has meant that “even very well-established, good plaintiffs’ firms don’t do medical malpractice anymore,” he says. “They just decided it’s too risky — it’s too expensive to litigate.” Steven Babitsky, president of Massachusetts-based SEAK, Inc., which trains expert witnesses, agrees that ex- pert charges are rising. The company does an annual sur- vey of witnesses from a range of specialties. Their sample is 50 | February 2019 too small to provide a reliable indicator of trends, he says, but data on 67 areas of expertise from 2014 and 2017 show a slow rise in prices of just under 7 percent. While the av- erage hourly rate for testimony is $600-$650, more special- ized areas like immunology and neurological surgery hit $1,200-$1,700. “Medical fees go up, legal fees go up, expert witness fees go up — it’s not a big shock,” says Babitsky. Callaham says that on major cases — those that in- volve, say, multiple doctors and the health care provider — he needs to bring in five to seven experts, and it’s not unusual for them to charge $1,000 an hour. Then there’s the separate cost of deposing each defendant doctor’s expert witnesses, whose deposition time he also pays for. Cutter says he’s had doctors involved in medical injury cases ask for $10,000 for an afternoon. All of that gives defendants the edge since deep pockets often win cases, says Callaham: “It’s one thing for an insur- ance company to put out $50,000 or $75,000 for experts on a malpractice case. It’s more difficult for a lot of individual lawyers to do that.” AN ENDANGERED SPECIES There’s no evidence that fewer cases mean fewer medical mistakes. A study in 2016 concluded that medical error