Rx for Hospitals: Q&A with Robert P. Roth
Robert P. Roth practices medical malpractice defense at Portnoy & Roth in Bloomfield Hills. He recently became a troubleshooter for Hospital Corporation of America, the nation’s largest hospital chain
Published in 2009 Michigan Super Lawyers magazine on September 9, 2009
What do you know today about the practice of law that you didn’t know coming out of law school?
There is no such thing as automatic justice. As an idealistic young person, you think that justice prevails automatically. You want to believe there’s a system out there that makes it happen somehow. The corollary of that is that you, as an attorney working within the bounds of professional conduct, can truly impact outcomes by your knowledge base, your experience, your hard work. You don’t always succeed, but by and large I think the system does allow for that. The skills of the judge and attorneys do really count.
Has anything else come as a surprise to you?
Juries. Laypeople come to this completely uninformed, for the most part, and take their roles extremely seriously, and that is a great compliment to the citizenry as a whole. A lot of people try to get out of jury duty, which I think is a huge mistake. But it’s an ongoing pleasant surprise to me that, once they get chosen, they do take it seriously and do the best job they can.
What did you learn from your parents?
They were both Auschwitz survivors. My father had a hard time dealing with the consequence of what he had to endure. But he tenaciously did what it took to support his family with an attitude that nobody owed him anything. My mother amazingly retained her faith and positive outlook on life. They were both great admirers of this country. But I think this tenaciousness and perseverance, the attitude that nobody owed you anything, probably I got from him.
How did they end up in the States?
They met after the war and married near Prague in November 1945. When the Communists took over Czechoslovakia, they fled to the American zone in Germany in 1946. My brother was born in a Displaced Persons Camp in 1947. Then they eventually got passage to the U.S. in 1949. The Jewish Federation in Dallas sponsored them, and I was born in Dallas in 1950.
And later you moved to Michigan?
Upon arrival at Auschwitz, the old and the young were sent directly to the gas chambers. Those deemed fit to work survived initial selection. They typically separated family members, but my mom and her two sisters didn’t look alike, so they were able to stay together. One aunt ended up in New York and the other in Ohio. We moved to Ohio in 1956 to join her. My dad, who started out as a ditch-digger, then a plumber, advanced to selling advertising for a small paper in Ohio and did so well that the Free Press noticed him and offered him a job in Detroit. One day after we moved here in 1960, we ran into a woman at the grocery store who had been in my mother’s barrack at Auschwitz.
Your parents’ experiences must be a constant backdrop to your own life.
Three issues that jump out are: First, the stark context of the formation of my Jewish identity. I attribute my involvement in the Jewish community to a visceral reaction to the Holocaust, in not wanting to give Hitler a posthumous victory. So-called “continuity” issues drive me—which, in my opinion, require vibrant synagogue life and substantive Jewish education in the form of day schools K-12. Second, I would say, from a personality standpoint, a tenaciousness and persistence in all matters; a reluctance to give in and an aversion to failure. And, finally, a great appreciation for this country. I am a believer that the U.S. has been an irreplaceable force for good in this dysfunctional world.
You were a driving force behind a first-of-its-kind Jewish high school in Detroit?
To contextualize briefly, the great emigrations of Jews from Eastern Europe in the late 19th century wanted nothing more than to become Americans: i.e., assimilate into the idea of America. Sociologically this did not happen overnight. As recently as the 1950s and ’60s, Jews were still subject to quotas in higher education and the professions. My mentor, Bernard Portnoy, was Law Review editor at Wayne State University, and on graduation could not get a job in 1960 from any Detroit law firm because he was Jewish. Sinai Hospital was founded in the ’50s because Jewish doctors could not get on staffs [at other hospitals]. But American Jewry did “succeed” by any credible yardstick. However, in that process, traditional knowledge and observance took a major hit. We need revitalized institutions to recapture and renew traditional practices. The Frankel Academy was founded in 2000 to be a part of that effort, and I was privileged to be its first president. Being a child of survivors, Jewish education is a major issue.
Your practice consists exclusively of medical malpractice defense?
My mentor, Mr. Portnoy, established a defense litigation practice in the ’60s, primarily servicing Continental Insurance Co. insureds in this area. It initially entailed the full panoply of PI [personal injury] defense: municipalities, corporations, hospitals—so we represented Kmart in slip-and-falls and false arrest; civil-rights cases, products liability and malpractice. As insurers stopped covering municipalities and hospitals and went in-house, we developed a boutique practice exclusively for our hospital clients. I have been doing that for over 20 years now. The last couple of years, I have had the opportunity to be exposed to jurisdictions around the country as a troubleshooter for Hospital Corporation of America, the largest for-profit hospital chain. To be, in many instances, on a first-name basis with some of the best medical practitioners around the country is quite a privilege and a benefit.
Are there days you feel like a doctor?
Well … I wouldn’t be that arrogant, but you certainly do acquire a fair amount of experience and information that the average layperson doesn’t have. It can be a little dangerous to think you know more than you do, but I think sometimes you do know more than some doctors out there. (chuckling)
Tell me about a memorable case.
Cox v. Hurley Medical Center stands out. It addressed in a fundamental way what constituted malpractice in Michigan. It was a neonatal case in which a nurse was alleged to have miscared for a patient. The judge denominated the neonatal unit as the defendant in the jury instruction. Since one cannot sue a “unit” and it represented multiple healthcare providers, I objected. Over eight years, three trips to the Court of Appeals and two to the Michigan Supreme Court, I finally prevailed. So that’s where that persistence I referred to earlier came in. A bit like a terrier on a pant leg, I suppose.
How do you feel about the tort reforms/caps on medical malpractice?
Amongst litigators, there would probably be a consensus that in recent years the state supreme court has been very conservative and interpreted longstanding tort reform in a way that was quite fundamentalist, with the objective to try to cut down volume of litigation. I don’t agree with interpreting statutes with some kind of political agenda.
I hear you’re a film buff. What’s your all-time favorite?
I have many, but The Lion in Winter, if you force me to name one. It’s got the most incredible dialogue of any movie ever made.
What was your pick for the Oscars last year?
Actually, I thought they were all bad, certainly not in the realm of movies like In the Heat of the Night or Lawrence of Arabia or The Lion in Winter or in that genre when “best movie” meant something.
How would you like to be remembered?
Primarily as a good husband and father and somebody who contributed to the continuity of the Jewish people and to the vibrancy of the American republic. And not a bad litigator.