The September 2012 issue of the AARP Bulletin has a story about a woman who sued an elder-law attorney for legal malpractice. Bear with me. It’s an interesting tale.

In 2004, a man consulted an elder-law attorney to set up a trust that would distribute his assets fairly. He had a daughter from his previous marriage and his wife had five children from her previous marriage. The story is a bit complicated but his plan was that should he die first, the wife would inherit everything. Then when she died, his biological daughter was to receive whatever was left.

But the lawyer made an error and the trust actually was written in such a way that all six children (his daughter and his wife’s five) would get equal shares of the estate instead of his daughter getting it all.

Sure enough, the man died first and the mistake was discovered. Even though the wife was still alive, the man’s daughter sued the attorney for legal malpractice. He admitted the error but defended himself by saying the daughter had not yet suffered any damages so he owed her nothing. He also said the amount of money that might be left in the trust was impossible to calculate.

Based on the life expectancy of the wife and the amount of money in the trust, it was estimated that the daughter should have been entitled to over $500,000 when the wife died.

The court ruled that the lawyer’s reasoning had some merit but, because of the serious nature of the error, it awarded the daughter $472,000 in damages.

Fine and dandy, right?

Not so fast. You see, lawyers don’t have to carry malpractice insurance.

Here’s how the story ends: “[The lawyer] decided to declare bankruptcy, which released him from his obligation to pay [the daughter].”

The story doesn’t mention whether the daughter had to pay her lawyer or any other fees.

When I finished reading the article, I was infuriated. I thought back to the origins of the medical malpractice crisis. When I was a resident in the early 1970s, general surgeons were paying less than $500 per year for malpractice insurance. When commercial insurers withdrew from the market, many state medical societies hastily established physician-owned mutual insurance companies. Shortly thereafter, premium rates shot up and here we are.

I’ve often wondered what would have happened had the medical societies simply thrown up their collective hands and said: “What are we to do? No one will insure our doctors.” Would state governments have stepped in? Would that have been a good thing or a bad thing? What about the federal government? Would we still have the ongoing crisis?

If you want to have some fun, play “What’s My Premium?” on the New York physician-owned malpractice company’s website. You can query any specialty in any county in the state. For example, a neurosurgeon in Nassau County (on Long Island) is currently paying $315,000 per year for malpractice coverage. OB/GYN in the Bronx? $183,247.

In July, the New York Times reported that some hospitals in New York are dropping malpractice insurance because they can’t afford it any longer, and they may not have enough money set aside to pay judgments against them.

The hospitals use the fact that they have little money to pay out as negotiating leverage. The hospitals tell plaintiffs to either take what little is offered as a settlement or risk getting nothing if the hospital goes bankrupt and closes.

Maybe the hospitals are learning from the lawyers. What about us physicians? Will we ever learn?

Skeptical Scalpel is a practicing surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last two years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog has had more than 250,000 page views, and he has over 3,400 followers on Twitter.

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