Given how much doctors complain about the prevalence of malpractice claims, one might imagine suing them is an easy job.
Bend plaintiff’s attorney Jennifer Coughlin offers a contrary perspective. She says specializing in medical malpractice is a risky business that most lawyers want to avoid. “This area of the law is like a minefield,” she said.
That’s why Coughlin, a partner in the boutique personal injury firm Brothers, Hawn and Coughlin, said she’s extremely selective about whom she represents. The firm fields hundreds of calls a year, and she accepts two or three cases. She checks the backgrounds of her prospective clients, and she sometimes spends as long as six months on preliminary research.
Coughlin, 36, has been with her firm since 2010 and became a partner in 2011. Medical malpractice is part of Coughlin’s general personal-injury practice, which includes vehicle accidents and civil rights. Although she takes few of them, medical negligence cases consume most of her time.
Consulting with medical experts is expensive — they charge as much as $5,000 an hour — but Coughlin said it’s worthwhile to avoid bankrupting the firm. “It may be $20,000 before I decide I don’t want to take the case,” she said. “I’d rather figure it out at $10,000 than $100,000.”
There are two categories of medical stories that never go past Coughlin’s inbox. One is the unexpected surgical outcome. It’s almost impossible to prove negligence in those cases because surgeons have wide discretion in the operating room, she said.
And Coughlin never takes an infection case. “It’s my opinion, and I think juries have shown this over and over, that infections are a known risk of going into a hospital,” she said. “When you’re going into a hospital to get help and they help you and you happen to get an infection on the other side of it, they still helped you.”
Acknowledging she’s more conservative than most plaintiff’s attorneys, Coughlin said she urges potential clients to get a second legal opinion.
Many Central Oregon residents find themselves represented by a lawyer from Eugene, Salem or Portland because attorneys in those cities are less likely to have a professional relationship with a Bend area doctor.
“I don’t categorically reject certain types of cases, but I look very closely and very hard, and so does my legal assistant, at people who contact us, as far as what the facts were,” said Keith Tichenor of the Portland firm Tichenor and Dziuba.
Most malpractice cases never go to trial, and that’s what a plaintiff’s attorney wants, Tichenor said. “Most cases that are clearly malpractice and have genuine damaging consequences get settled,” he said.
Most of those that do go to trial are won by the defendant, Tichenor said. “The plaintiffs have the burden of proof, and the jury is told that. If they raise enough doubt in the jury’s mind, they’ll win.”
And, Coughlin said, “Jurors like to believe doctors. If you can’t trust your doctor, who can you trust in the world?”
Trial statistics are always in the back of Coughlin’s mind. “Would I be willing to take this case to trial?” she asks herself. “It has to be a resounding ‘yes’ in order for me to take a case.”
Typically, payments on malpractice claims are logged at the National Practitioner Data Bank, but in 2013 Oregon passed a law that allows patients, their families, hospitals or doctors to go through a confidential mediation process. Coughlin said she has not yet taken a case through the process, which is overseen by the Oregon Patient Safety Commission.
Oregon physicians have paid out an average of 83 malpractice claims in the five-year period from 2010 through 2014, according to the National Practitioner Data Bank, maintained by U.S. Department of Health and Human Services. The number of payments ranged from a high of 103 in 2012 to a low of 59 the following year.
In the most recent year statistics were available, 2014, there were 79 payments totaling $38.29 million. About three-quarters of those settlements amounted to $1 million or less.
Coughlin’s few cases tend to be big. Among her current clients are the sons of Loretta MacPherson, who died in December 2014 at St. Charles Bend because of a pharmacy error. As of mid-December, no lawsuit had been filed, and Coughlin said it was still undecided whether her clients would settle out of court.
MacPherson’s is a classic example of a strong malpractice case, Coughlin said. MacPherson went into cardiac arrest and died after the St. Charles pharmacy filled her IV bag with a paralyzing drug instead of the anti-seizure medication that had been prescribed. “That is a clear breach of the standard of care,” Coughlin said. “I don’t think the defense could ever hire an expert to say that’s OK.”
In general, Coughlin said, she wants to help people who’ve been wronged. One of her clients is the father of Edwin Mays, who died of a methamphetamine overdose in the Deschutes County jail. The father, Edwin Mays Jr., is suing the county in federal court.
Coughlin might be unusual among plaintiff’s attorneys in that she also has an affinity for medicine. It’s what drew her to the specialty. “I often think I should’ve gone to medical school instead of law school,” she said.
Most cases boil down to a battle of the experts, she said, and a large part of the job is to find and vet those experts. In the process, Coughlin acquires a miniature library of knowledge about the topic at hand.
Coughlin recognizes that being sued has a big impact on doctors and their families. That’s why she works through their lawyers to serve papers, saving them the embarrassment of being served in a clinic or at home.
The experience is equally unpleasant for plaintiffs. The victim’s medical history and finances are drawn out through lengthy depositions. “Even though the transcript is kept under seal if we need it to be, they still feel it’s very violating. And it is,” Coughlin said.
Many potential clients want someone to acknowledge they were harmed. Coughlin said she can’t help with that. “My avenue is a legal one and it gets them money,” she said. “I can’t get letters of apology, I can’t put people in jail and I can’t give them a time machine to go back and have a different doctor.
“So if somebody says, ‘It’s just the principle of it,’ I say, ‘Well, I’m not your gal because you can have principles without me.’” •