Medical Malpractice

By Attorney Gregg Herman
June 30, 2014

The Milwaukee Journal Sentinel’s latest attack on the legal system is decrying that there are not more medical malpractice lawsuits.  In an article in yesterday’s paper, the “watchdog report” discussed the distress of a family whose mother had died, but could not sue the hospital for malpractice.  Today’s paper had a story about a baby who died, but whose parents could not find a lawyer to sue the hospital.

To be sure, malpractice lawsuits have gone a long way towards making this a safer world.  Is there any doubt that cars are safer as a result of auto makers fearing lawsuits?  Or that doctors – and lawyers – are more careful?

However, as with all things in life, there are (or should be) limits.  Just because someone died, there should not automatically be a a lawsuit waiting to happen against the doctor or a hospital.

When I was a law student, I took a course in The Law and Medicine.  One of the subjects is when doctors should perform a simple test for glaucoma.  During that time, I happened to have an appointment with my ophthalmologist (whom I had seen since I was a child) and asked his opinion.  Rather than answering my question, he simply took a bottle and administered the test.

Now, granted maybe he was annoyed by a law student questioning his practice, but it was instructive that his knee jerk reaction was to do a test, which even if safe and inexpensive, nonetheless was totally unnecessary at my age.

Similarly, I had a colleague who would go beyond the norms of divorce discovery.  Whenever he was asked to explain, he said that he did not want to get sued for malpractice.  He never was sued, but he practiced defensively, at additional cost to his clients.

Of course, discussing nuances does not sell newspapers.  So instead, the paper runs human interest stories.    While in the story in Sunday’s paper it certainly appears that malpractice was committed, that is not as clear in the story in Monday’s paper.  In both instances, however, the point of the stories was to feel sorry for the survivors who could not sue.

The stories try to blame the lobbyists for convincing legislators to cap damages, thus discouraging lawyers from wanting to take these cases.  While that may very well have such an effect, large awards discourage doctors from practicing efficient medicine and encourage waste.

How nice it would be to see a story once which discussed both sides of a story, rather than starting out to prove a point – and then finding individual examples to illustrate it.  Like the TV game show Jeopardy, the paper started out with the answer, then asked the questions.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.