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    Should a dermatologist settle a case out of court? If so, when?

    Dr. Skin missed seeing a melanoma on his patient. It was present when he saw her two years ago; he just did not see it.


    David Goldberg, M.D., J.D.
    Two years later, the lesion is biopsied by another physician, the depth is 1.3 mm and a sentinel lymph node is positive for metastatic disease. The former patient sues Dr. Skin for negligence. The plaintiff's attorney offers to settle the case prior to going to court for $1 million dollars. Should Dr. Skin do so?

    To settle, or not?

    The first question to be asked is, "Was Dr. Skin negligent?" If it can be argued that the duty of a reasonable physician would have been to diagnose the melanoma earlier and if Dr. Skin did not do so, then he has breached his duty as a reasonable physician. If there is then a connection (nexus) between that breach and damages, then Dr. Skin would be considered negligent.

    All would agree that metastatic disease would be considered in the category of damages. Dr. Skin is not certain he was negligent. Should he settle or go to trial?

    There is no question that the standard approach is one of "marching to trial." However, the march to trial is a multi-year process that includes discovery, depositions, pretrial hearings, various maneuvers and then trial. There are no guarantees.

    In reality, the majority of medical malpractice cases do settle out of court. One of the reasons for this is that cases are very expensive to investigate and prosecute. Litigation is very time consuming and victims often wait years to receive anything.

    The average court payout against all negligent physicians in the United States is $1 million to $4.5 million. The average settlement is for $500,000. Since there are no guarantees, the decision becomes a balancing act.

    Of note: Successful lawsuits against hospitals in the United States occur about 50 percent of the time, while successful lawsuits against physicians occur only 33 percent of the time. Hospital payouts are often much higher than those against physicians.

    Economic value

    The economic value of a case may also be determined by where it is brought. California and Texas have caps on the dollar amounts for pain and suffering. No state has a cap on medical expenses, lost income and lost future earnings.

    It should be noted that such settlements occur not only in the United States, but also abroad. In November 2004, 35-year-old Andrew Pascall of the United Kingdom died from metastatic melanoma that went undiagnosed. He had a career as a promising young engineer and left behind a wife and two young children.

    The case was settled out of court for $2 million. Once a case is settled, it generally cannot be reopened.

    If a case is settled, it should also settle all the plaintiff's related bills (Medicare, workers' compensation, ERISA, etc.). In addition, the settlement should be for total dollar amount without a breakdown of categories.

    Having looked at the issues, it should be emphasized that the incidence of claims is still fairly low for dermatologists.

    Although dermatologists constitute 1.4 percent of the total physician population, only 0.7 percent of claims are against dermatologists. In addition, only 2 percent of truly negligent acts result in medical malpractice claims, while only 17 percent of all malpractice claims result from truly negligent acts.

    Among dermatologists, the most common reasons for lawsuits are wrong site, functional outcome, post-procedure outcome, cosmetic outcome, recurrent tumor, improper consent, delayed diagnosis and misdiagnosis.

    Dr. Skin will ultimately need to make a decision as to whether to settle or not. There are no guarantees. Settlement will always be difficult, but sometimes it is the best approach.

    David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey; director of laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.

    GoldbergDavid.jpg
    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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