Malpractice lawsuits highly technical, expensive
Published: May 29, 2011 by Brandon Stahl from Duluth News Tribune
Measured by malpractice suits alleging physical damage, Dr. Stefan Konasiewicz stands in a category by himself in St. Louis County District Court. Since 2002, the former St. Luke's neurosurgeon has been sued for malpractice nine times.
A News Tribune search of court records found more than 100 malpractice cases filed in St. Louis County since 2002.
Only one other Duluth doctor, John "Jed" Downs, has been sued more times — by 21 women — in what became one class-action suit alleging that he inappropriately touched the women during examinations.
Four malpractice suits were filed against gastroenterologist Javier De La Garza related to patient allegations that he had touched them inappropriately. Only one doctor besides Konasiewicz, Dean Weber, a plastic surgeon, faced more than two malpractice suits in which medical damage to a patient is alleged. Weber was sued three times.
Being sued for malpractice, or even settling a malpractice suit, doesn't mean the doctor or hospital is guilty or that they are admitting a mistake or wrongdoing. In court, a settled malpractice case is ruled "dismissed."
In a statement released Friday, St. Luke's defended the number of malpractice suits filed against Konasiewicz:
"Dr. Konasiewicz's litigation history over his career is not worse than the average of other neurosurgeons' experience in the region or in the country. While Dr. Konasiewicz has, like most neurosurgeons, been sued on occasion, he has never received a litigation judgment against him. In fact, in the only case against Dr. Konasiewicz that has gone to trial, the jury found that he did not commit malpractice and acted within the standard for neurosurgeons." The full statement appears below and online at duluthnewstribune.com.
Medical malpractice lawsuits are difficult to file in Minnesota, let alone win, and they're not approached lightly, according to several state malpractice attorneys.
Under a state law passed in the 1970s to prevent frivolous lawsuits, before a case can be brought it must be reviewed by an independent medical expert who specializes in the same field of the physician accused of wrongdoing. That expert then has to sign a detailed affidavit saying that not only did negligent care occur, but the care resulted in harm. The cost to get an expert and to obtain medical records can be thousands of dollars.
"A lot of law firms stay away from these cases because it involves a lot of time and expense before you even know if there's a case," said Paul Schweiger, a Duluth attorney who specializes in malpractice cases. "We have to make, frankly, an economic decision: Are we going to even incur the expense of an expert review?"Schweiger has worked on cases against Dr. Konasiewicz but declined to speak about them.
The expert review can later be challenged by defense attorneys if a case is brought, making it crucial that the expert is qualified, said Patrick Stoneking, who works on malpractice cases in Minneapolis. If a judge finds the expert isn't qualified, the case can be thrown out.
"So there's a very high bar on an expert's qualifications," Stoneking said. "It makes people think twice before bringing a case."
If a case is filed, it can take years and thousands of dollars in expenses before it is settled or goes to trial. And often the clients filing suit don't have money to pay for those expenses, meaning the firms take the risk of footing the bill.
Kathleen Flynn Peterson, a registered nurse and attorney in Minneapolis who specializes in medical malpractice, said most physicians are loathe to settle because their names would appear in the National Practitioner Data Bank, a record of all malpractice cases filed in the country since 1991. While most of that data isn't open to the public, it is available to hospitals and health-care providers.
If cases go to trial, about 88 percent of cases that result in a verdict are in favor of physicians and health-care providers, according to a 2009 study conducted by the Physicians Insurers Association of America.
"There is a very strong bias that has been proven by social science research that shows individuals hold physicians and health-care providers in high regard," Peterson said, "and as a result, to overcome that bias and get a jury to really believe there was negligence … is difficult."
