A Lawyer Looks at Medical Malpractice

Larry Leifer, 61, has practiced medical malpractice law for nearly 30 years out of a one-man Maplewood office. Some 40% of his clients are malpractice plaintiffs. He is chair-elect of the New Jersey State Bar Association Certified Civil Trial Attorney's Section and is a member of the Board of Governors

NJBIZ: Is there a medical malpractice insurance crisis?

Leifer: There is no crisis at the courthouse. There has been a 25% decline in medical malpractice cases filed in the state compared with five years ago. Last year there were 1,600 cases filed in New Jersey. Considering we have in excess of 8 million people in the state, 1,600 lawsuits is not a crisis. The truth of the matter is that what really has occurred is an investment crisis in New Jersey and across the nation. Insurance companies, like other investors, are not making any money on premiums. They are maybe making 1.5% on their premium dollars rather than 6%, 7% or 8% in the past. What we are really facing is a massive propaganda attack by the medical malpractice insurers. They want to scare the public by pitting the greedy trial lawyer against the doctor who can't practice medicine anymore because insurance is not affordable. What we are really facing is a greedy insurance industry that is being dishonest.

NJBIZ: State doctors who went on strike last month and malpractice insurers want a $250,000 cap on noneconomic damages awarded by juries. Is this fair?

Leifer: To ask for a cap on pain and suffering for braindamaged babies, quadriplegics and burn victims is absurd. Last year in New Jersey, 205 cases in the field of medical malpractice were tried. Of those 205 cases, juries found for the defendant in 151 cases while 54 went for the plaintiff. The average award was $939,000. However, the median award was $300,000. Eighteen were over $1 million, three were over $5 million and 12 verdicts were less than $100,000. About half of the verdicts were less than $300,000. Doctors want the $250,000 cap because they think this will cure the malpractice crisis forever. It just hasn't proven out that way in other states. If they get the cap, I know that it won't reduce premiums.

NJBIZ: Cap advocates say California's $250,000 limit on noneconomic damages has slowed the rise of premiums there.

Leifer: The rates did not come down in California because of caps. They came down because state laws required insurance companies to open their books when they applied for rate increases. Rates came down in California after Proposition 103 was passed. Basically, what the cap did was make tort lawyers unavailable for any cases except the massive ones because you can't really include pain and suffering in a medical malpractice.

NJBIZ: Medical malpractice lawyers last year lost nearly 75% of the cases that went to trial. What is your record?

Leifer: My win/loss ratio is 50/50. About 90% of my cases settle before trial, at the courthouse steps or during trial. I try not to take cases that will be an economic bloodbath. The doctors win 75% of cases and that's how it should be. I have no argument with that. But there were 700 cases settled last year in New Jersey so you can't blame the jury system for cases settling for more than they're worth. It's the jury system that keeps the insurance companies honest.

NJBIZ: Is malpractice law particularly lucrative?

Leifer: In 1970, 1 could have gone to a pharmaceutical company as a patent attorney and earned 40% more than what I started for in this business. I chose personal injury because I like working with people. I don't like working with patents. I enjoy helping people. I make a comfortable living sometimes, not all the time. I could be making a lot more money as a patent attorney with Johnson & Johnson or Hoffmann-La Roche with a lot less stress.

NJBIZ: Tort-reform advocates often mention the "McDonald's coffee case." What was special about it?

Leifer: A woman spilled a cup of coffee on her lap and received third-degree burns on her vagina. Her plaintiff attorney demanded $45,000 to settle the case and McDonald's refused. The plaintiff attorney proved at trial that McDonald's heated its coffee to 200 degrees when it only needed to heat it to 120 degrees. The attorney was able to prove that McDonald's, at the corporate level, decided to keep the coffee at 200 degrees despite receiving more than 700 complaints. The jury awarded $200,000 compensatory damages and $2 million in punitive damages against McDonald's for knowingly taking the risk of burning people in exchange for more profit. The case settled at the Appellate Court for significantly less than the jury award. McDonald's extracted a promise from the plaintiff that she would never discuss her position concerning the coffee case. It then joined the business community in exploiting the jury verdict as an example of a runaway jury that can't be trusted. I tried to bring up the McDonald's case in the last case I tried, but the judge wouldn't let me.

NJBIZ: Many point to the McDonald's case to show our tort system has failed. What do you say to that?

Leifer: If you care to analyze it, juries are generally right 80% to 90% of the time. A 10% error rate is the fairest system anybody can come up with around the world. I wouldn't want the Russian, French or even English system. We have a unique system here. judges would tell you in chambers that they agree with 80% to 90% of what juries have done. juries are basically honest. But a massive propaganda campaign has invaded juries.

For that reason, a malpractice case has such a smell about it. With some of that aroma filling the jury room, people don't want to see their doctor's malpractice premiums increase if they give away money. That's a real problem.

NJBIZ: How does your pharmacy degree help you?

Leifer: I'm at a tremendous advantage over the average attorney. I can assimilate medical, and in particular, drug information, much more rapidly. I might not remember everything from 30 years ago, but when I get a report from a doctor, after a couple of hours of reading it, I can understand it. I can convey that information to you and I can crossexamine a doctor intelligently. I think with some effort on my part in a pertinent field, I can know more than that doctor. I'm not afraid of doctors.