BY ANNEMARIE FRANCZYK
The work can roil with sweeping government regulation or turn on the whims of a sullen juror.

Such extremes are among the workaday challenges of medical-malpractice attorneys on either side of an unfortunate health outcome.

The attorneys are cognizant that tort reform - the term a tip-off that their industry is broken and needs to be fixed - lurks in the agendas of state and federal leaders. There's been scant legislative change recently, and even the nation's new health-care-reform law sidesteps the issue. Debate, however, continues among the lawyers. And predictably so.

Defense attorney Kathleen Sweet says New York's medical-malpractice provisions turn patients into "adversaries."

"The system as it exists is flawed," she says. "My clients in particular are under siege by people with high expectations. They perceive that they are entitled to a certain outcome. But physicians are still people. You can't expect perfection from them."

Corey Hogan, a plaintiffs' attorney, takes issue with doctor-friendly proposals to cap multi-million-dollar awards to the injured.

"I don't think it's fair to say it's limited, what you can recover, because we're going to favor the community of physicians," Hogan says. "If doctors are forced into preventive medicine, that's not a bad thing."

The high-stakes nature of this area of the law attracts the highly competitive and hard-working, practitioners say. And long days and complex cases require physical and emotional energy. Add to that persistence, doggedness and medical sophistication.

It's no surprise to defense attorney Barbara Schifeling that the area of law attracts women, she says, "because they're caring and personal."

Philip Magner, now retired, is considered the godfather of medical malpractice in Western New York. He was the first in the region to bring a complaint against a doctor - unheard of, even controversial, in 1961.

A six-month-old girl treated for dehydration at a predecessor institution to Erie County Medical Center, E.J. Meyer Memorial Hospital, was given fluids intravenously through the leg. But by morning, the limb was gangrenous and had to be amputated.

Why hadn't someone noticed that the needle was placed incorrectly and fluid was filling the soft tissue? A nurse who suspected a problem neglected to wake the physician covering the night shift because he had a prickly personality, Magner discovered. The infant, who was African-American, received $50,000.

"In those days, not only was the settlement low, black people were not treated as fairly as white people were, unfortunately," Magner says.

The physician community was bitterly opposed to the direction Magner was taking, enough so that he once checked into a hospital under an assumed name to have minor surgery, he says.

Today, it can take $50,000 in experts' fees and other preparation costs just to bring the case to trial, and that can be a factor that discourages injured patients from pushing their cases into court. Hogan estimates that of the 50 or so that come before him, just about six or so are tried. For those that get there, jury selection is key, particularly for plaintiffs' attorneys, who say juries tend to dissociate themselves with the injured patient and side with the defendant.

"Most of the time, the plaintiff's attorney has the mostly favorable impression of the medical field to deal with," says Laraine Kelley, who represents patients. "People want to think that the medical profession will protect them. It affects the way you approach jurors."

Anyone with deep-seated beliefs, lingering bitterness or showing any kind of bias is out, Kelley says. That certainly included one prospective juror, Sweet remembers, who asserted that "plaintiffs' attorneys are preying on the people with untoward outcomes to feed their greed."

Even neutral jurors can appear emotional or stoic during the trial, though lawyers are at a loss to interpret the signals sent from the jury box - until the verdict.

"Once it's game on in the courtroom, you think you know what will happen," Sweet says. "You play the whole game, but you never know what the score is."

Freelance writer Annemarie Franczyk is a frequent Buffalo Law Journal contributor.

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