Malpractice lawyer recommendations come from unlikely source: hospitals

After Ada George's thyroid treatment went wrong last summer, leaving the 57-year-old mother of three brain-damaged and comatose, officials from Good Samaritan Hospital approached her family twice to apologize and offer compensation, which the Georges refused, according to court records.

So the Baltimore hospital went a step further and recommended that the family get a lawyer. They handed over the business card of Brian Nash, who had agreed to take the Georges' case at a reduced rate.

The referral from such an unlikely source surprised the family, which already had an attorney. But in Maryland, it's an accepted — if little known — practice.

Several medical systems — including MedStar Health, LifeBridge Health and the University of Maryland Medical System, which collectively run about two dozen hospitals — keep lists of vetted lawyers who will accept patient cases for lower fees, often with the expectation that claims will be settled quickly.

Participating attorneys and hospital officials say the referral system is for the good of injured patients and their families, who can avoid the lengthy, draining litigation process.

But skeptics say the system has a built-in conflict of interest. Lawyers on the lists may defer to the hospitals because they feel beholden, rather than push for the best deal for the patient.

"The first question I would have if I were the patient is: 'Would I even want to get a referral from a hospital?'" said S. Allan Adelman, an Annapolis attorney and past president of the American Health Lawyers Association. "I think the whole relationship is tainted."

Adelman and several other attorneys contacted by The Baltimore Sun expressed shock at the practice. Others brushed it off as no big deal.

T. Christine Pham, a Baltimore lawyer who chairs the state bar association's ethics committee, doesn't see an inherent problem with a likely defendant recommending a lawyer to the probable plaintiff.

The Lawyers Rules of Professional Conduct largely leave it up to attorneys to judge whether they have a conflict of interest in representing clients. And the rules expressly prohibit lawyers from allowing a referral source to "direct or regulate [their] professional judgment."

"Just because it's a hospital referring him, [the lawyer] is not going to give the hospital a break," Pham said. It may be that the referrals go to lawyers who are deemed "not unreasonable," which, Pham said, can be interpreted by some as being lenient in the highly emotional world of medical malpractice.

Such lawsuits generally take three to five years to work their way through the courts, according to a multi-year study published in 2005, and they frequently engender bad feelings on both sides. Industry observers say health care providers are suspicious of patient claims, along with the wild variability of jury awards. And patients often feel duped by doctors who won't admit liability, and by a legal system that frequently lets them down.

"The best estimates are that only 2 to 3 percent of patients injured by negligence file claims, only about half of the claimants recover money, and litigation is resolved discordantly with the merit of the claim (i.e. money is awarded in nonmeritorious cases or no money is awarded in meritorious cases)," said an article published last year in the New England Journal of Medicine.

Statistics like those are fueling efforts to reform the way medical liability is handled throughout the country. Many states, including Maryland, require mediation before litigation. Offers of apology and compensation often avoid lawsuits completely.

Maryland's lawyer referral practice is part of the larger reform dialogue, participants say.

"Malpractice litigation is an expensive, painful and time-consuming process for both the patient and the providers. By approaching the patient and their family early, it is our hope that if compensation is appropriate, we can get that in the hands of the patient and their family when they need it: immediately," MedStar Health, which owns Good Samaritan, said in a statement.

"If the injury to the patient is relatively minor, we are very comfortable in having that discussion regarding compensation directly with the patient and their family without the involvement of attorneys. However, if the injury and the financial consequences of that injury are significant, we are much more comfortable knowing that the patient and their family has received independent outside legal counsel to help them make their decisions regarding resolution," the MedStar statement said. "To this end, we have identified a small number of very seasoned, highly-respected lawyers in the community who have impeccable reputations for being fair and honest" and who are willing to work for reduced rates.

MedStar wouldn't discuss the Georges' case, which settled last week for undisclosed terms. The Georges were unavailable for comment. A lawsuit filed in Baltimore Circuit Court by the family's attorney, Robert Weltchek, outlines the exchange between Good Samaritan officials and the Georges.

Ada George had entered the hospital in June for minor surgery on her thyroid, the filings claim. But a blood clot at the surgery site eventually led to an airway obstruction that caused cardiac arrest and severe brain injury. About a week later, hospital president Jeffrey A. Matton and director of risk management Kenneth R. Walsch approached her family, acknowledging that a mistake had been made, according to the court filing.

The men offered to compensate the Georges for various expenses, in accordance with MedStar's policy, but the family twice refused the offers.

"At this point in time, Mr. Matton and Mr. Walsch indicated to the family that they should have an attorney and presented the family with the business card of a prominent plaintiffs' malpractice attorney," the lawsuit states. "The hospital representatives informed the family that this attorney was a friend of Mr. Walsch and had … represented Good Samaritan Hospital in malpractice actions in the past, but now represented plaintiffs in such actions."

The Sun identified the attorney as Brian Nash, who began representing patients in malpractice claims several years ago after decades as a defense attorney. In an email interview, Nash said he was a "huge proponent" of such hospital referrals.

"I doubt many can appreciate how this system we have can literally destroy a patient or his/her family's life when they can no longer pay their bills, are evicted or lose their homes, have their cars repossessed, etc. — unless you've been there and seen how the long, tedious process of litigation can do just that in many instances," Nash wrote. He said that's led him to advocate for "early case resolution through whatever programs, pilot projects and the like may be out there."

He first learned of the referral system about 18 months ago, when another Maryland health care system, which he declined to identify, asked him if he would be one of a handful of attorneys placed "on a list of plaintiff lawyers chosen for their advocacy skills, integrity and ethics by the institution." One of the conditions was that he reduce his contingency fee to 10 or 15 percent from the 40 percent he was used to receiving.

Nash agreed, he said, because he believes "the patient should get the maximum recovery and our fee should be based on the amount of time, effort and risk."

In any other situation, it sounds odd. A cheating husband doesn't typically recommend a divorce lawyer to his wife, and an accident victim wouldn't normally take the advice of someone who just crashed into her.

"It would be a huge conflict," said Jay Miller, a Baltimore County personal injury lawyer. "I mean, how could a hospital essentially say to a patient, 'Go to a lawyer we recommend and they'll give you a discount'? That reeks of a conflict."

Miller added that the lawyers may be less likely to push for their patients' needs, because they want to "keep [the hospitals] happy" and the referrals coming.

But Nash dismissed conflict-of-interest concerns as unfounded. "I could care less about being 'beholden' to a hospital," he said. "I sue them for a living."

He said he only agreed to hear the Georges' case if the family was told about his past, and the referrals don't add much to his practice, which he's shifting toward mediation. He's only been approached by hospital-referred patients twice.

It's unclear how often hospitals recommend lawyers to their patients, but it appears to be infrequent, based on anecdotal evidence. Neither MedStar nor the University of Maryland provided data, and LifeBridge declined to comment for the article altogether.

Baltimore lawyer Andrew G. Slutkin has handled fewer than a half-dozen of the cases in the past three years, yet says he's on "all of them" when it comes to lists of hospital-recommended attorneys.

Those cases all settled, Slutkin said, adding that he would have taken them to trial if he thought it best.

"When they give out my name, I don't treat [the hospitals] any differently, because I have an obligation to represent my client to the fullest extent I can," Slutkin said.

Mary Lynn Carver, a spokeswoman for the University of Maryland Medical System, said that while they "provide names of well respected, well credentialed lawyers to our patients," upon request, "the patient will always make their own choice regarding whether to seek legal counsel and if so, from whom."

And MedStar said the referrals are part of an obligation to do "what is right for our patients and their families."

In the end, the hospital's motivation doesn't really matter, Nash said.

"I do believe that institutions, for whatever reasons, do elect to resolve cases early for very noble, appropriate reasons, as well as the financial wisdom of early case resolution," he said.

Regardless, he added, "the patient wins. The lawyers may make less … but it truly is a 'loss' that is well worth the 'price' to get these matters resolved, fairly, economically and timely."