Afterward, the parents always send him pictures of the children, dressed up in frilly dresses or little suits. Their faces are bright, their bodies erect, frozen for one perpetual instant in a pose of normalcy.
But Salt Lake attorney Charles Thronson knows about the lives after the shutters snap. These are children with severe brain damage, spastic quadriplegia and blindness -the victims of births that went haywire. For the rest of their lives these children will need intensive and expensive medical care.Thronson has represented many Utah families in medical malpractice cases, most involving birth injuries. He worries that a new proposal mandating arbitration in malpractice cases may not be in the best interest of his clients.
It's not the concept of arbitration in general that concerns him, but its application to medical malpractice. "It's one thing when you're talking about giving a guy three days suspension for fighting on the job site, and another when you're talking about whether an infant who's a quadriplegic will have enough money for the intensive medical care and therapy he needs for the rest of his life."
Thronson has several objections to the arbitration process currently proposed:
- "Classically, arbitration doesn't involve the same level of lengthy and detailed preparation (that court cases do)." Arbitration is freer in allowing hearsay and opinion, for example, and does not provide for thorough authentication of documents and other exhibits, he said.
Fairness in medical malpractice cases, he said, can only be accomplished when certain legal details are attended to, such as depositions, interrogatories and expert witnesses.
Any arbitration that doesn't include these details would not ensure fair compensation, he said. Arbitration that does include them would not likely save any time or money.
- Thronson objects to having a doctor on the arbitration panel, just as he would object to having a physician on a jury in a medical malpractice case. "You're talking about a doctor who very well may know the physician whose conduct is in question. Doctors are reluctant to ever be critical of another physician."
- If a doctor is free to sue a patient, for an unpaid bill for example, and take that suit to court before a jury, a patient should have the same right when the issue is malpractice.
- If insurance companies want to reduce costs, it would make more sense for them to make a good-faith evaluation of meritorious claims and settle those cases earlier.
The arbitration proposal assumes that the current system is broken, said Thronson. He disagrees. Although proponents of arbitration point in dismay to large jury awards nationwide, in Utah only a handful of jury verdicts have awarded $1 million or more, he said. "And these involved serious brain damage where you're looking at a lifetime of full-time care."
Utah does not have long court delays, and physicians' insurance rates are still among the lowest in the nation, he added.
The majority of Thronson's malpractice cases settle out of court. He worries that arbitration would change the outcomes in such cases.