Lawyers on both sides of the aisle say that some doctors, faced with the reality that even a confidential settlement will end up on the Internet, are opting to take their chances in court.
They are exercising the right available under most medical malpractice policies to withhold their consent to settle, even when it goes against the wishes of their carriers and advice of counsel.
"Doctors do not want to settle at all now that it has to be reported to the databank for any payment whatsoever," says defense lawyer Richard Amdur.
Amdur used to settle about a third of his cases but estimates that the figure has dropped recently to 10 to 15 percent. The impact is mainly felt in cases under $100,000, says Amdur, of Eatontown, N.J.'s Amdur, Maggs & McGann.
Robert Conroy, of Kern Augustine Conroy & Schoppmann in Bridgewater, N.J., sees the same trend from another angle. Lawyers at his firm are being retained more often by doctors who refuse to go along with carriers' positions on settling.
Some plaintiffs' lawyers also see a deterrent effect. "Clearly some people are more hesitant," says E. Drew Britcher, chairman of the medical malpractice committee of the Association of Trial Lawyers of America-New Jersey.
Like Amdur, Britcher sees this with smaller claims, where any verdict would fall within the doctor's malpractice coverage. "Before, there was some potential advantage to physicians to let the case be settled," says Britcher, of Glen Rock, N.J.'s Britcher Leone & Roth. "The only advantage that now exists for the physician is a case where there might be personal exposure."
He adds: "Certain defense lawyers have made a big deal to me that they're very troubled by this everything-ends-up-on-the-Internet rule."
The Web site was authorized by the New Jersey Health Care Consumer Information Act, N.J.S.A. 45:9-22.21, and includes malpractice payments in the past five years as well as the medical school, licensing history, hospital privilege restrictions, disciplinary actions and other information about the state's more than 32,500 doctors, osteopaths and podiatrists.
New Jersey's largest malpractice carriers apparently aren't willing to say whether they've observed the same phenomenon. Princeton Insurance did not respond to a request for comment and Michael Martin, general counsel for the MIIX Group, declines comment, noting that the MIIX Insurance subsidiary, in a voluntary solvent runoff since 2002, is under state control since being ordered into rehabilitation on Sept. 28.
***Separately, the presence of the Affidavit of Merit statute has dropped the number of medmal lawsuits:
In 1995, the state legislature passed the Affidavit of Merit Statute. The law provides that in any suit alleging professional malpractice or negligence, 'the plaintiff shall, within 60 days following the date of the filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint fell outside acceptable professional or occupational standards or treatment practicerthes.'
Enactment of the law coincides with a measured drop in the number of medical malpractice suits filed. In 2004, 1,493 medical malpractice suits were filed, a 24 percent decrease from 1997 when 1,971 suits were filed. 1997 is the earliest year for which data is available from the state Administrative Office of the Court (New Jersey Law Journal, 6/13/05). [Look here
The issue is also discussed on e-news of the Medical Society of New Jersey:
“Medical Malpractice filings have declined steadily in New Jersey since the adoption of a tort reform measure designed to weed out frivolous lawsuits.” [New Jersey Law Journal, vol. CLXXX no. 11 (June 13, 2005)]. According to the New Jersey Law Journal front page article the number of medical malpractice filings dropped 24% between 1997 and last year, from 1,971 to 1,493 lawsuits. The article notes that one reason for the drop in lawsuits may be the statutory change in 1995 requiring an “Affidavit of Merit.” The change was opposed by the plaintiffs’ lawyers.