Malpractice lawyer recommendations come from unlikely source: hospitals

Referred attorneys take cases at lower fee; some see conflict

January 28, 2012|By Tricia Bishop, The Baltimore Sun

After Ada George's thyroid treatment went wrong last summer, leaving the 57-year-old mother of three brain-damaged and comatose, officials from Good Samaritan Hospital approached her family twice to apologize and offer compensation, which the Georges refused, according to court records.

So the Baltimore hospital went a step further and recommended that the family get a lawyer. They handed over the business card of Brian Nash, who had agreed to take the Georges' case at a reduced rate.

The referral from such an unlikely source surprised the family, which already had an attorney. But in Maryland, it's an accepted — if little known — practice.

Several medical systems — including MedStar Health, LifeBridge Health and the University of Maryland Medical System, which collectively run about two dozen hospitals — keep lists of vetted lawyers who will accept patient cases for lower fees, often with the expectation that claims will be settled quickly.

Participating attorneys and hospital officials say the referral system is for the good of injured patients and their families, who can avoid the lengthy, draining litigation process.

But skeptics say the system has a built-in conflict of interest. Lawyers on the lists may defer to the hospitals because they feel beholden, rather than push for the best deal for the patient.

"The first question I would have if I were the patient is: 'Would I even want to get a referral from a hospital?'" said S. Allan Adelman, an Annapolis attorney and past president of the American Health Lawyers Association. "I think the whole relationship is tainted."

Adelman and several other attorneys contacted by The Baltimore Sun expressed shock at the practice. Others brushed it off as no big deal.

T. Christine Pham, a Baltimore lawyer who chairs the state bar association's ethics committee, doesn't see an inherent problem with a likely defendant recommending a lawyer to the probable plaintiff.

The Lawyers Rules of Professional Conduct largely leave it up to attorneys to judge whether they have a conflict of interest in representing clients. And the rules expressly prohibit lawyers from allowing a referral source to "direct or regulate [their] professional judgment."

"Just because it's a hospital referring him, [the lawyer] is not going to give the hospital a break," Pham said. It may be that the referrals go to lawyers who are deemed "not unreasonable," which, Pham said, can be interpreted by some as being lenient in the highly emotional world of medical malpractice.

Such lawsuits generally take three to five years to work their way through the courts, according to a multi-year study published in 2005, and they frequently engender bad feelings on both sides. Industry observers say health care providers are suspicious of patient claims, along with the wild variability of jury awards. And patients often feel duped by doctors who won't admit liability, and by a legal system that frequently lets them down.

"The best estimates are that only 2 to 3 percent of patients injured by negligence file claims, only about half of the claimants recover money, and litigation is resolved discordantly with the merit of the claim (i.e. money is awarded in nonmeritorious cases or no money is awarded in meritorious cases)," said an article published last year in the New England Journal of Medicine.

Statistics like those are fueling efforts to reform the way medical liability is handled throughout the country. Many states, including Maryland, require mediation before litigation. Offers of apology and compensation often avoid lawsuits completely.

Maryland's lawyer referral practice is part of the larger reform dialogue, participants say.

"Malpractice litigation is an expensive, painful and time-consuming process for both the patient and the providers. By approaching the patient and their family early, it is our hope that if compensation is appropriate, we can get that in the hands of the patient and their family when they need it: immediately," MedStar Health, which owns Good Samaritan, said in a statement.

"If the injury to the patient is relatively minor, we are very comfortable in having that discussion regarding compensation directly with the patient and their family without the involvement of attorneys. However, if the injury and the financial consequences of that injury are significant, we are much more comfortable knowing that the patient and their family has received independent outside legal counsel to help them make their decisions regarding resolution," the MedStar statement said. "To this end, we have identified a small number of very seasoned, highly-respected lawyers in the community who have impeccable reputations for being fair and honest" and who are willing to work for reduced rates.

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