This Man Makes Millions Suing OB/GYNS
by Gabrielle Jonas
Read how Jack Olender and the Inner Circle of Advocates
bone up on ways to nail you.
This article was originally published in January 1991 in OBG Management Magazine.
Winning million-dollar awards from Ob/Gyns doesn't satisfy this wrathful plaintiffs' attorney. He'd go so far as to make them pay "through the criminal justice system." Meet your number-one enemy.
Once a year, 100 of the most successful personal injury lawyers in the country meet for a five-day series of seminars and strategy sessions -- all designed to make them even more successful in court. They're rich, they're wily, and they call themselves the Inner Circle of Advocates. Perhaps the richest and wiliest among them is Jack Olender of Washington, D.C. According to the television program "60 Minutes," he earns $5 million a year, mostly from suing Ob/Gyns. In the past 14 years, he's successfully sued more than 200 Ob/Gyns, 20 of them more than once and four local OB practices four times each.
His waiting room and hallways are hung with scores of framed press reports about him. A sampling: "Preeminent legal expert on brain-damaged babies." "Legal champion of injured people." "America's Number 1 medical malpractice lawyer." "Top gun when something goes wrong in the hospital." "The malpractice king." Even Pravda dubbed him "the famous American lawyer" when he gave a "peacemaker" award to Mikhail Gorbachev.
His six-sided, wood-paneled private office could hold your consulting room, waiting room, and three examining rooms combined. Three walls are picture windows with commanding views of Washington. The others are covered with best-wishes, pictures of celebrities, dozens of certificates and plaques, and a painting by a client for whom he won $2.5 million in 1976. She was the nation's first multimillion-dollar brain-damaged baby case (see "Launching the era of megabuck claims," at conclusion of this article). A huge mahogany partner's desk almost dwarfs the 55-year-old man sitting behind it. It's the office that agony ‹the agony of your Ob/Gyn colleagues‹ built.
And Olender's proud of it. He believes he's performing a "valuable service." Ask if most of the OBs he repeatedly sued are bad doctors, and you'll get an unequivocal Yes. He calls them "repeat offenders."
Olender's total caseload is 80 percent medical malpractice, with almost half of those cases involving Ob/Gyns. And though he sues some individuals in other specialties repeatedly, he far more frequently sues and sues again the same OBs. "We concentrate on OB work because I like it," he says. "And it turns out that it's more lucrative." There's no cap on awards for pain and suffering in Washington, D.C. "So the return on those cases justifies the work that goes into them. We average $50,000 to $100,000 in expenses per case."
Yet Olender has a philanthropic side, especially when it comes to children's causes. He created The Olender Foundation, which helps underprivileged youths. His efforts won him the honor of then-Mayor Marion Barry's proclaiming "Jack Olender Day" in Washington, D.C.
In 1984, Olender's precedent-setting case in the District of Columbia Court of Appeals established a viable fetus at 33 weeks as a person. That allows the fetus's estate to recover damages. "Now we can properly sue Ob/Gyns in stillbirth cases where the fetus was viable," he says.
As one of the nation's most active and outspoken plaintiffs' attorneys, Olender helps set the pace for litigation against Ob/Gyns. OBG MANAGEMENT's special assignments editor Gabrielle Jonas met with Jack Olender to discuss, among other subjects, how you can avoid meeting him or his legal colleagues. Here's how the conversation went:
Q: About your habit of suing the same OBs repeatedly‹
A: There are also OBs we repeatedly get inquiries about, but don't pursue. Parents came in recently with a horribly brain-damaged child. I had sued the OB twice successfully, and though I believe he's incompetent, I had to turn them away. In that specific case, he didn't commit malpractice.
Q. Half your medical malpractice caseload is cerebral palsy. Any change in how you press those cases since the celebrated 1988 study from the National Institutes of Health threw cold water on the link between CP and hypoxia at birth?1
A. No, the study hasn't made much difference. It says a tiny percent of cases are caused by hypoxia during L&D. Plaintiffs' experts will debunk the study, defense experts will confirm it. The jury decides who is more credible.
Q. It's just a question of stacking up one expert against the other?
A. Of credibility and of showing the NIH study to be valid or politically motivated.
Q. You mean it's a sham, with the express purpose of being useful to defendants' expert witnesses later?
A. To some extent. Both the NIH study and ACOG's Precis intentionally put in information so it can be used in court. Precis is written in a very defensive manner. It says hypoxia doesn't necessarily cause cerebral palsy, and when it does, OBs aren't to blame. It doesn't teach how to avoid hypoxia: Proper instruction in safety is sacrificed to brainwashing young OBs-in-training not to testify against their fellow OBs. It's terrible when a teaching text is used for political purposes instead of to train young doctors to be better OBs.
Q. As someone who's not a physician, how can you be sure what practices are proper, what in fact causes cerebral palsy and when a study is clinically motivated?
A. I can receive information from experts and judge for myself what holds water and what doesn't; what's credible and what's a concoction. The same way a jury can. As a malpractice lawyer, by definition I must show that standard practice wasn't complied with.
Q. But you don't even agree with what the standard of care is, do you?
A. I certainly do. I agree with the standard of care as it is taught by competent medical professionals.
Q. But if you're challenging and questioning the NIH study or what appears in Precis, where's the standard you're holding up?
A. Much of what is in Precis and the NIH study is fine and good and true. But you needn't accept every nuance, especially those portions intended to make it difficult for an injured child to receive recovery. It's obvious why certain statements are found in these publications.
Q. The clinical studies challenging the efficacy of electronic fetal monitoring are also shams?
A. Yes, the wild conclusions being espoused are politically motivated. Some studies claim you don't get better results from EFM; others claim if you just ignore the patient and let the machine manage her labor, you'll get good results. It's worthless to have a woman on EFM if no one evaluates it. But used in conjunction with caring human surveillance, it's a valuable adjunct. Credible OBs won't say it's better not to have EFM data than to have it.
Q. Are the OBs you've sued repeatedly bad OBs?
A. No. When OBs commit errors, the injuries from them are great and more likely to lead to suits than in other fields. But most OB malpractice is not pursued and does not result in a claim or suit.
Q. Are you saying there's even more OB malpractice going on than indicated by the high number of suits?
A. That's right. About 14 out of 15 malpractice occurrences never surface as a case.
Q. If true, wouldn't that suggest something fundamentally wrong with the profession?
A. There is: the paranoia regarding malpractice. The medical profession is so driven with hatred and frustration it focuses all its energy on trying to change the legal system, instead of trying to prevent malpractice. Until the focus is diverted from trying to take away patients' rights to sue and get full damages, there'll never be a cure.
Q. Sounds like a Catch-22: The profession is rife with malpractice, so let's sue all the doctors we can; the cause of malpractice is that OBs are preoccupied with malpractice.
A. They're preoccupied with the politics of malpractice, instead of with the medicine that would prevent the malpractice.
Q. What do you recommend OBs do?
A. Set up and diligently follow systems to avoid iatrogenic injury. That it can be done has been proven beyond all doubt at Harvard with the channeling system. And in Colorado, OBs have delivered 70,000 babies using a new record-keeping system with not one malpractice claim. An Ob/Gyn should be like a jetliner pilot. No matter how experienced, he must manually check off a list before taking off. If the Ob/Gyn follows the proper systems, malpractice will be eliminated.
A. Eee-liminated. One-hundred percent. By definition, if the care is not substandard, there can be no malpractice. If that kind of system can prevent the one-third of bad babies made bad by malpractice, what a wonderful thing that would be.
Q. Is it malpractice to make split-second decisions with limited information?
A. If it's a proper exercise of judgment, there's no malpractice, whether the result is good or bad. Simple as that. If the OB's judgment is acceptable, even where there's room to differ, there's no malpractice, no case.
Q. Ob/Gyns who are finally vindicated by a jury go through hell until then. Aren't many OBs sued unnecessarily?
A. No. Most of these suits are justified; pressing invalid suits is economic suicide. You're foolish to bring an unwinnable suit. And there aren't very many foolish lawyers. The problem isn't that there are many frivolous suits; it's that there aren't enough suits.
Q. Aren't enough? In most suits, the OB is vindicated.
"Pressing invalid suits is economic suicide. The problem isn't that there are many frivolous suits; it's that there aren't enough suits."
A. Not accurate. Over 95 percent of valid cases are settled. Those going to trial are usually the weaker cases, so you'd expect the defense to win a majority of those.
Q. Why settle the strongest cases when you can go to trial and get even more?
A. It wouldn't be ethical to gamble with the child's birthright. We don't play Russian roulette with its future if we can get a reasonable settlement. If not, we go to trial. But that doesn't mean we settle cheaply.
Q. What's the average amount for which you settle cerebral palsy cases?
A. In strong cerebral palsy cases, you're talking several million dollars.
Q. What percent of obstetric trial cases do you win?
A. The majority of cases; the overwhelming majority.
Q. What's your view of a no-fault system for adjudicating malpractice claims?
A. It's inappropriate for malpractice. The tort system provides incentive to practice careful medicine and should be retained.
Q. By what you said earlier -- that OBs were much more defensive, but not practicing better medicine -- it doesn't appear that the tort system is accomplishing that.
A. Well, that's true. But eventually, things will work out, and let's hope that's sooner rather than later. When we have more groups such as in Colorado and more hospitals adopting channeling, we'll find commission of malpractice falling drastically.
Q. Don't you think the legal profession is pretty responsible for the shortage of OBs?
A. No. There really is no shortage, except in rural areas. Ob/Gyns want the cultural and professional opportunities of the cities. There are more Ob/Gyns being certified than ever. In D.C., we have Ob/Gyns at two and a half times the national average.
Let me say this: You're following a party line and I'm following a party line. The only difference is, everything I'm saying is based on fact. I've studied all the studies and I'm just not following what any trade or profession lays out as the party line, and you are, through your questions. For every statement of fact I give you, you're going to counter that with, "but, but, but." And not one of these party lines of the medical profession is valid.
"Any obstetrician who does a C-section that isn't indicated just to avoid being sued is committing malpractice."
Q. Have you ever sued your own doctor?
Q. After the deaths of your two brothers, your parents were so afraid of losing you they didn't even allow you to have a bicycle, for fear you'd crash.
A. That's right. Safety -- safety was the watchword.
Q. What kind of influence has all that emphasis on caution had on your professional life?
A. I try to be very careful and precise and correct. And I don't like to tolerate sloppiness and carelessness. When sloppy and careless people hurt others, they should pay -- monetarily or through the criminal justice system.
Q. How badly do you make "sloppy" doctors pay? What's your largest Ob/Gyn verdict?
A. It was $10 million, in 1988; a perinatal hypoxia-cerebral palsy case on a 1985 birth. I argued that the OB should have acted on the warning signs, and delivered much sooner, rather than waiting two hours.
Q. Did you ever win a case you shouldn't have won?
A. It's hard enough to win a case you believe in because many jurors are predisposed to the M.D. Everybody has to rely on him for personal care. Going in, the general sympathy is with him. So this business about winning cases that shouldn't be won, I don't think so.
Q. Do you think the influence of the legal profession in bringing about defensive medicine is appropriate?
A. If defensive medicine means doing something unnecessary just to cover the OB's rear end, it's bad. If it means doing tests and caring for patients in a careful, considerate, non-mass-production manner, then it's good. Such defensive medicine will prevent malpractice. Lawyers don't cause the increase in cesareans.
Q. What does?
A. Reliance on EFM; knowing that high and generally mid-forceps are dangerous and that C-section is less so; better C-section techniques; sophisticated neonatal care.
Q. You endorse defensive medicine?
A. Yes. But any OB who does a C-section that isn't indicated just to avoid being sued is committing malpractice. So I'm for properly thought-out, advantageous C-sections.
Q. But how can you know if it's advantageous ahead of time?
A. We never know, of course. But we can make our best evaluations.
Q. How do you rate attorneys' contingency fee system?
A. It's excellent. It provides the keys to the courthouse for most Americans. Most couldn't prosecute if they had to cough up the cost at an hourly rate. It's also the best protection for OBs because it shields them from frivolous cases. There's no economic advantage in it for the lawyer: If he loses, he gets one-third of nothing.
That, coupled with Federal Court Rule 11 -- which requires a medical malpractice suit to have a reasonable factual basis -- is a great incentive for lawyers to bring only valid, meritorious suits. The few bad lawyers who shoot first and look later, without having investigated and lined up experts, are getting socked with the other side's expenses.
Q. Why is the contingency rate so high -- 30 to 40 percent?
A. That's not high. Thousands of hours of lawyer and staff time and the need to advance substantial costs justify a one-third fee. Over the years, that's been accepted as standard. In cases involving children, the judge has routinely approved the fee as fair.
Q. Is the percent of bad lawyers as high as that of M.D.s?
A. Sure, there's a lot of legal malpractice. Lawyers are trying to clean up their act and follow standards and procedures. It's a serious problem. But you don't hear anything about lawyers going to the legislature trying to put caps on legal malpractice cases or making it more difficult to sue.
Q. Maybe because the lawyers are the ones handling those cases. Besides, what about lawyers fighting the caps issue in the Supreme Court?
A. The lawyers are against caps, sure.
Q. Where do you get your expert witnesses?
A. We use both practicing and academic M.D.s. But it's becoming more and more difficult to find credible M.D.s willing to testify for plaintiffs, because of the incredible pressure exerted on them by their colleagues, especially in OBG. Most of the specialties don't exert that much pressure on doctors who dare to testify on behalf of plaintiffs.
Q. Do you look for any particular socioeconomic group during jury selection?
A. We generally look for have-nots rather than haves, because generally the haves don't want anybody else to have anything.
Q. How do you get into the Inner Circle of Advocates?
A. Among the criteria are that you be considered one of the best, that you have tried very many substantial cases, that you be a decent and honest person and that you be the kind of person who is willing to share information back and forth to help other people.
Q. You mean, tactics?
Q. What about?
A. When the NIH study came out, we discussed how to tackle it in court and how to use it to our advantage. At our last meeting, we had a roundtable on the EFM controversy. We're talking theory and strategy here.
Q. How many cases have you won for more than $5 million; how many for more than $1 million?
A. Only a few over $5 million; I think eight over $1 million. Those are verdicts. As I say, most of the cases are settled.
Q. How many settlements in your favor have you had in all, and how many for more than $1 million?
A. Well over 1,000 settlements; about 30 over $1 million.
1 Freeman, JM, Nelson, KB: Intrapartum asphyxia and cerebral palsy. Pediatrics, 1988; 82:240-249.
Gabrielle Jonas is a freelance writer living in New Jersey. Email: firstname.lastname@example.org.
"I was the prey in an Olender lawsuit"
An Ob/Gyn who was prosecuted by Jack Olender offers insight into what makes this lawyer so successful. BY EDWARD G. KOCH, M.D. Ob/Gyn Washington, D.C.
Jack Olender, my upstairs office neighbor, locked horns with me across his enormous, burled walnut conference table three years ago. In a smooth, sometimes cunning manner, this soft-spoken man deposed me for four hours straight. On my attorney's advice, we stopped. But Olender wasn't done with me. He grilled me for another three and a half hours at a second session.
After a low-forceps delivery, the baby had excellent Apgar scores and passed the usual neurological tests with flying colors. A year after birth, the patient came in, asked for her chart, and left.
That should have tipped me off. Soon after, she and Jack Olender hit me with a $5 million perinatal hypoxia suit. The baby had been diagnosed as having cerebral palsy.
Eventually I settled for $500,000. Why? Olender filed my case on the heels of his famed $10 million verdict against three local Ob/Gyns (see "Launching the era of megabuck claims. Despite strong evidence given by their expert witnesses, the jury found them liable. The details were too technical; the plaintiff, too full of pathos. Surprisingly, even local plaintiffs' attorneys were up-in-arms over the outcome. This climate, along with my interrupted FHR tracings and unavailable key expert witness, made me capitulate.
Olender is not a force in himself, but he happens to play the game the best when the dice are loaded in his favor. And they usually are: He's practicing in Washington, D.C., where attempts at introducing tort reform are constantly stymied by a city council that has had the issue tied up in committee for years. The capital is the only U.S. jurisdiction without tort reform. It's a city with too much pity -- full of deluded jurors handing out million-dollar awards.
The upshot: a malpractice nightmare for OBs and a lucrative "crap-shoot" for attorneys. The fact that Olender doesn't take many cases against OBs in Virginia -- where tort reforms and a no-fault system for settling "birth-injury" claims are the order of the day -- speaks to the heart of the issue.
In the absence of legal remedies, my local colleagues and I have learned that the best way to avoid Olender and his ilk is to tread gingerly. Now we carefully document charts and obtain consultations whenever they appear to be warranted. We do internal fetal monitoring (which would have saved me in the case I settled with Olender, but I was too busy pushing with the patient!)
What can we do beyond that? Although I don't agree with Olender that malpractice can be eliminated, I do agree it can be reduced with clinical protocols. There's no shame in being practical: Anesthesiologists have reduced their malpractice suits and premiums with such guidelines.
Though many local OBs are bitter over Olender's success at trouncing us, I try not to let that -- or the proximity of his office -- breed personal resentment. Instead I blame the legal system that allows him to exploit the untoward events of medicine. But I do object to Olender's claim to beneficence. If that were the case, his clients would enjoy more of his "winnings."
|Medical families who sue Ob/Gyns
Physicians, more than most people, understand the limitations of medicine. Nevertheless, doctors or their spouses occasionally sue Ob/Gyns for malpractice. Jack Olender describes two related cases he's handled:
Two obstetric malpractice cases that I prosecuted and settled in 1987 involved cerebral palsied children whose parents didn't seek legal representation until the children were teenagers.
In one case, the father was a pediatrician. Only when his wife was stricken with terminal cancer did he decide that he had to do something for their severely injured daughter. So he reluctantly sued the obstetrician who delivered the child. Shortly before the scheduled trial, we were able to settle the case satisfactorily.
In the second case, the injured child's mother was an R.N. and his stepfather was an obstetrician. The OB opposed his wife's desire to seek compensation from her own OB, who was his former professor. But she filed suit against his wishes, and we made a satisfactory settlement.
These cases, along with others where I've had the privilege to represent physicians and nurses with injured children, demonstrate the reluctance with which medical families pursue malpractice actions. My conclusion: There are many such cases where families do nothing. -- Jack Olender
|Launching the era of megabuck claims
For nearly 20 years, plaintiffs' attorney Jack Olender has been ratcheting up the value of malpractice judgments against Ob/Gyns. Here he describes bow he won the first multi-million dollar OB malpractice verdict:
In 1976, I tried a noteworthy case in the District of Columbia Superior Court, resulting in what I understand to be the first multimillion-dollar obstetric malpractice verdict. The case followed the script of Paul Newman's movie "The Verdict." Except my case predated the movie.
I represented a schoolteacher whose baby had cerebral palsy. The birth was breech, and the baby was hypoxic on delivery. A nurse's note in the hospital records indicated that OB residents had pulled down the baby's feet in the labor room.
When we deposed the residents, they claimed that they'd pulled down the baby's feet in the delivery room -- not the labor room -- and that the nurse had made a simple error in her note. Our obstetric experts told us that the case hinged on whether the feet had been pulled down in the labor room. If so, it was a clear breach of the standard of care, and we would win the case.
But we couldn't find the nurse. She had left the hospital and apparently disappeared from the face of the earth. I remember walking in the rain with the defense attorney, on our way to catch a shuttle flight to New York for a deposition of one of my obstetric experts. The defense lawyer kept chiding me, saying I couldn't expect to win the case.
Then, in New York, a lucky thing happened. We were at a hospital in the Bronx for the deposition when my expert told me that the missing nurse was right there working as a nurse-midwife. She had dropped out of nursing to attend midwifery school, which was why we couldn't find her through nursing registries and associations.
She remembered the labor and delivery well. She knew that the residents had improperly pulled down the baby's feet in the labor room, and she would so testify.
Going into trial, the hospital, which was the only defendant, offered $50,000 to settle. While the jury was out after a three-week trial, the defense lawyer suggested that the hospital might be willing to pay as much as $300,000. We rejected that offer, feeling sure we had convinced the jury. Good thing: They returned a verdict for $2.5 million. -- Jack Olender
|The Inner Circle wants your scalp
The nation's most successful plaintiffs' attorneys meet annually to hone their battle skills. You and your colleagues figure prominently on their agenda.
Although already a killer plaintiffs' attorney before being inducted into the Inner Circle of Advocates, Jack Olender says he's since improved his trial performance by 5 to 10 percent: "It's a special kind of continuing education. It arms me to do battle in the courtroom." Here's how Olender describes some of the weapons:
Roundtables on how to dismantle studies that question the efficacy of electronic fetal monitoring.
One rule: "You have to wear well over the long haul, so no histrionics."
How effective is all that for the exclusive members? Olender puts it this way: "We study all aspects of trial work, from soup to nuts." So if you find yourself up against one of these lawyers, say grace.
|If your liability carrier drags you to court
Ob/Gyns who want to defend their names in court are often convinced by their malpractice insurers to settle before trial. But sometimes it's the other way around -- with disastrous results for defendants -- as related by Jack Olender:
In 1988, I tried an obstetric case before a jury in the U.S. District Court for the District of Columbia, obtaining $10 million for a badly cerebral palsied child. The irony of the case: It need never have reached trial.
The obstetricians had begged their insurance company to accept the plaintiffs' settlement demand. (The hospital had settled for $800,000.) But the doctors' insurer declined to make any offer ‹despite the fact that we had a slew of eminent physicians serving as experts. The verdict left these OBs -- who could have settled within their $4 million coverage limits before or during the trial -- with a $6 million problem. In the end, they did what they should have done prior to trial: They hired private counsel, who was able to settle the case for the $4 million insurance coverage.
This case shows how desirable it is for an obstetrician to have private counsel when sued for malpractice. There's just too much pressure on the lawyer hired by the insurance company to follow the orders of the company, rather than the physician who's being sued. -- Jack Olender
REPRINTED FROM OBG MANAGEMENT.
COPYRIGHT 1997 BY DOWDEN PUBLISHING COMPANY,
MONTVALE, N.J. ALL RIGHTS RESERVED.