If you believe a doctor's negligence harmed or killed someone in your family, you might have a hard time finding a lawyer to take your case.
Attorneys are becoming increasingly choosy when it comes to filing medical malpractice lawsuits — largely because doctors and hospitals usually win when the cases go to court.
In the last two months, two Tucson families won medical-malpractice lawsuits and received jury verdicts of about $1 million each. But they were bucking a trend.
Ten years ago, 171 medical-malpractice suits were filed in Pima County. Last year the number fell to 65, a decline of 62 percent. In Maricopa County, malpractice suits dropped 44 percent.
Some attribute the decline to changes in the law, the expense of putting on a case and the attitudes of jurors. Others say it's just a cyclical phenomenon.
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Tucson attorney Gene Zlaket has handled medical-malpractice cases for more than three decades and has represented both doctors and patients or their families.
He said part of the dip is due to insurance companies, which he said have shut down potential plaintiffs by convincing the public that frivolous lawsuits and high-dollar verdicts have led to bloated malpractice-insurance premiums and fewer doctors.
"The insurance companies have done a lot of advertising to persuade the public that malpractice premiums are related to runaway jury verdicts," Zlaket said. "How many times have you heard that doctors are leaving their practices and the state because they can't pay their premiums?"
While court records do show a decline in medical-malpractice lawsuits, if doctors are leaving, insurance premiums are not a driving factor, according to a survey by Arizona State University's Center for Health Information and Research.
In 2007, nearly 1,000 doctors licensed to practice in both Arizona and elsewhere were asked why they decided to practice outside Arizona. Their top two answers? They wanted to be closer to friends and relatives, and other places offered better salaries and reimbursements. Medical-malpractice premiums came in seventh, mentioned by just 9 percent of respondents, said Bill Johnson, director of the center that did the study.
The only thing insurance companies are guilty of, said Ron Malpiedi, chief operating officer for the Mutual Insurance Company of Arizona, is telling people the truth.
The fact is, runaway jury verdicts made filing lawsuits more attractive to those who felt they had been injured, he said, and high-dollar verdicts increased the value plaintiffs' attorneys placed on the injuries.
When that happened, health-care providers paid higher insurance rates and higher defense costs, Malpiedi said.
Still, Zlaket said, prospective jurors invariably cite the case in which a woman was awarded $2.7 million because she burned herself with McDonald's coffee.
He said misconceptions from such high-profile cases, and the insurance companies' campaign, contribute to jurors siding with doctors more frequently, making medical-malpractice cases — which are costly to begin with — less attractive.
Attorneys today tend to take only cases involving deaths or disabling injuries, he said, because they're easier to win and the potential payout is bigger.
Jurors' attitudes are also part of the reason that the vast majority of malpractice cases are settled before trial, Zlaket said. Exactly how many are settled is unknown, because Pima County Superior Court does not track out-of-court malpractice settlements, most of which are confidential and don't include admissions of culpability.
Arizona Bar Association figures show plaintiffs win 67 percent of all types civil cases. For just malpractice cases, Zlaket said, "the truth is probably 90 percent of the verdicts are for the defendants." Two other local attorneys agreed.
That could be because insurance companies settle cases that are clearly legitimate and take only the questionable ones to trial, Zlaket said.
Or it could be that jurors side with defendants because they simply believe doctors don't make mistakes.
Whenever he starts a trial, Zlaket tries to find and "de-select" prospective jurors who think the system is broken, doctors can't be wrong or victims shouldn't be compensated because for whatever reason, bad things sometimes happen to good people.
"You've got to convince them your client is the real deal and not just someone who is in there for the lottery or a handout," Zlaket said.
Some states have responded to concerns about excessive malpractice awards with caps on damages. Efforts to do the same in Arizona have failed.
"It's true that insurers have said for many years that runaway verdicts force increases in premiums because they do!" Malpiedi said by e-mail. "And the other side of that coin is also true: When runaway verdicts diminish, as they have in Texas and other states, suit filings decrease and premiums decline."
Similarly, in Arizona, as lawsuits have gone down, malpractice premiums have leveled off, and they've even dropped for some medical specialties.
Malpractice premiums are not on the rise in Arizona, and doctors are not fleeing the state because of them.
Between 2005 and 2008, the Arizona Department of Insurance reported no substantial increase in medical-malpractice premiums and no change in coverage availability. For 2009, the department reported premiums had decreased from last year, and coverage is more available.
For physicians and surgeons, the department reported a drop in average premiums from $26,733 in 2007 to $25,344 in 2008. And for the three years from July 1, 2006, through June 30, 2009, the department recorded a more than 12 percent reduction in rates for physicians and surgeons.
Rates for hospitals, however, are up nearly 4 percent in the past 18 months.
Malpiedi, whose company insures 89 percent of the state's doctors, said physicians saw a 6 percent decrease in their premiums this year and an 8 percent decrease the year prior.
A family practitioner or a doctor practicing internal medicine paid about $15,900 for a $1 million policy this year, Malpiedi said. Ten years ago, the same policy was about $11,212.
Arizona's premiums are in the "middle of the pack, ratewise," nationally, Malpiedi said.
Zlaket, Malpiedi and Pima County Superior Court Judge Michael Miller agree that recent changes in the law have affected medical-malpractice cases.
Until recently, any medical doctor could testify that another doctor's behavior "fell below the standard of care" for the profession. Now, only practicing doctors who specialize in the same field as the physician being sued can testify.
Also, jurors no longer can view a doctor's apology to a patient as an admission of guilt.
Miller, who presides over Pima County Superior Court's civil bench, said he is forced to dismiss many medical-malpractices cases because plaintiffs' attorneys can't find an expert willing to testify on their behalf.
Miller said he doesn't know if that's because specialists are too expensive, they don't support the plaintiff's theory of the case, or if they don't want to testify against one of their own.
Tucson attorney Jim Campbell, who spent the last 12 years defending health-care professionals who have been sued, said he doesn't believe jurors' verdicts or the decline in lawsuits have anything to do with insurance companies and premiums.
"When I speak with jurors after the trial, I find that they followed the evidence in the case," Campbell said. "They say that the doctors didn't fall below the standard of care. . . . Unexpected outcomes sometimes happen, even when the care was exceptional."
top MALPRACTICE verdicts
When medical-malpractice cases go to trial, the financial damages can be staggering. The top medical malpractice verdicts in Arizona since 2005:
• $36 million — Anita Graham v. ValueOptions Inc. and VO of Arizona Inc., Maricopa County.
• $28 million — Aviles family v. Maricopa County Medical Center, Maricopa County.
• $18 million — Jones family v. Maryvale Emergency Physicians, Maricopa County.
• $6 million — Warren family v. Walgreen Co. and Walgreen Arizona Drug Co., Coconino County.
• $6 million — Mary Culpepper v. TMC Healthcare, Tucson Long Term Care Medical Group Inc., Scott Bolback, Jean Marsalla and Omnicare Pharmacy Services Inc., Pima County. (TMC found 10 percent at fault. ManorCare, a nursing facility, found 90 percent at fault. Other defendants found not at fault.)
• $5.825 million — Stephens family v. John C. Lincoln Health Network, Maricopa County.
• $5.825 million — Kevin Routon v. Jeffrey Zuhl, Maricopa County.
• $5 million — Ritchie family v. Emergency Chiropractic PC, James Howe, Scott Krasner and Judith Solomon, Maricopa County. (Solomon was found not at fault.)
Source: Kelly Wilkins MacHenry, contributing author to Arizona Attorney magazine.
