1.            Too Many “Frivolous” Lawsuits

The reality is that there is not an epidemic of medical negligence lawsuits.   According to researchers at Harvard University, only one in eight people injured by medical negligence files a malpractice claim.[i]

The number of medical negligence filings has steadily declined in the last decade.  Between 1997 and 2006, the number of medical negligence filings dropped eight percent.  For those that do file, researchers at the Harvard School of Public Health examined 1,400 closed medical negligence claims and found that 97 percent were meritorious and 80 percent involved death or serious injury.  [ii]  The truth is medical malpractice claims are costly for the plaintiff and long and hard fought cases.   Those that are filed are meritorious and worth the time and money to help the victim.  In the long run, these suits help the system.

2.            Malpractice Myth – Lawsuits Increase Healthcare Costs

One of the principal myths surrounding medical malpractice is its effect on overall health care costs.  Medical malpractice is actually a tiny percentage of health care costs.  According to the Congressional Budget Office, it is less than 2 percent of overall health care spending.

Compare this to the profits of the hospital and insurance industries.  Heath care insurance industry profits rose by 56% in 2009.  The top five for-profit health insurers made $12.2 billion.   Similarly, the medical malpractice insurance industry has also enjoyed remarkable profits in recent years.  The top ten medical malpractice insurance companies made over $1 billion in profit in 2009.  The average profit rate of the top 10 medical malpractice companies was eight times greater than the average for Fortune 500 companies.[iii]

One real and undisputed driver of health care costs that can and should be reduced is medical error.  Each year, 98,000 people die from preventable medical errors in American hospitals, adding $29 billion in additional costs to the U.S. health care system.

3.            Tort reform and Insurance Rates

Tort reforms are passed under the guise that they will lower physicians’ liability premiums.  This does not happen.  While insurers do pay out less money when damage awards are capped, they do not pass the savings along to doctors by lowering premiums.  Researchers at the National Bureau of Economic Research (NBER) report that malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums. [iv]  There is little variance in premium levels between states that cap damages and those that do not.  In fact, in 2009, the average liability premium in states without caps on damages was lower than the average premium in states with caps on damages.[v]  The way to keep down cost and effect medical errors is not to reform the legal system by depriving injured patients of just compensation from companies that have   agreed to insure doctors for risk.

The Institute of Medicine has determined that 98,000 people in the United States die each year from preventable medical errors.   Only heart disease and cancer kill more Americans.[i]

Despite this fact, instead of focusing on ways to reduce medical errors, lawmakers introduce bills to restrict patient rights, cap damages, provide immunity to doctors and limit the ability of attorneys to cases.  Medical errors typically require additional and lengthy medical treatment which results in higher medical costs.  Preventing medical mistakes will dramatically lower health-care costs, reduce doctor’s insurance premiums and protect the health care and well-being of patients.

Medical malpractice lawsuits serve an important role in protecting patient safety.    Evidence suggests that lessening accountability has a detrimental effect on patient safety and health-care quality.  A study from the American College of Emergency Physicians found that safety improves when injured patients can hold negligent hospitals, physicians and/or nursing homes accountable.  States with aggressive legislation limiting patient access to the legal system are also the states that score lowest in patient safety.  In fact, the 10 states doctors claim to have the best liability environment (more tort reform) have a D+ score for patient safety.  In contrast, the 10 states that doctors claim have the worst liability environment have a B- for patient safety.   It is clear it is not caps on damages, doctor immunity or limitations on lawsuits that is necessary for lower healthcare costs and patient safety.

Unfortunately, there are those in the medical profession, more accurately in the insurance end that spread the myth of the ease with which medical malpractice claims can be brought. As with myths, if not looked at, they can appear to be accurate if sold hard enough by those who do not want financial responsibility.

The reality is, doctors do make errors. The truth is that some of those errors are a result of their failure to follow and apply standards of care they are held to know and provide to their patients. Not all, but some.

When they do, the results can be tragic and life altering.

The myth is that these malpractice claims are easily made and that the doctors are frequently victimized by unsupported claims. Not so. Like drivers of cars, some doctors go through medical “stop signs” and like those drivers, their reflex is to shift blame for what happened or to deny responsibility.

The patient or patient’s family has many hurdles between injury or death and the only thing permitted them by our laws: financial compensation, to the extent money can make up in part, for what was lost. Whether it is a brain damaged baby, a child with cerebral palsy, an unexplained fatal bleed, or some other birth or surgical injury, the burden on the injured is the same. Gathering and presenting proof, often at real emotional and financial expense.

They must have the medical records and patient history evaluated by doctors willing to objectively look at everything and advise if there is proof the doctor failed to do what was required, under the known circumstances. The problem facing the patient is that the review of the care is often significantly based on the medical “script” written in part, by the defendant or those who worked with the defendant. That “script” or chart is often completed after those involved know what happened and the seriousness of the result.

The experienced malpractice attorney knows there is a limited pool of doctors who are willing to stand up and call it objectively, knowing where to look and what to expect. That attorney has learned where to look and to whom to speak for candid answers that both the attorney and the client can use for making decisions based upon medical truth. It is a foolish attorney who seeks a doctor to say what he or she needs said, as opposed to a real analysis of whether there was in fact medical malpractice. The investment at so many levels, is far too great for that type of foolishness. The myth of malpractice claims ignores that hard reality.

Unlike the virtually unlimited lineup of witnesses available to defend the conduct, or misconduct, of the defendant doctor, the patient’s attorney must know where to find an analysis he can rely upon, by a doctor willing to back it up. That opinion will hopefully come from a doctor who also has the ability to communicate the truth of his analysis. That is not always easy when the lineup of potential witnesses is often so much smaller than those the defendant can call upon.

There is a program coming on HBO Monday June 27th at 9 p.m. that I think all MUST watch. It deals with the distorted reporting surrounding the famed “McDonalds’s coffee” case, where a woman filed suit after being seriously burned when the coffee spilled on her lap. The media made a joke out of it and misreported what actually happened, causing and allowing widespread mocking commentary about abuse of the legal system.

 The program delivers the truth as to what really happened to the injured woman, how severely she was injured and what McDonalds had done and failed to do, that led to this injury. It is a warning to all of us that what we hear and read is often delivered to us by those whose interest is in distortion and manipulation of opinion, not the passing on of truth. It should make us all wary of those whose financial self interest and desire to remove the level playing field of our legal system, can so easily control and manipulate a belief that sound bite and headline is the actual story.

It provides a warning we all need to see and hear, so that we are aware we must protect our right and access to the truth from those whose desire is to tilt the playing field and the information from which we develop and act on our beliefs.

Andrew Rockman

partner

Pellettieri, Rabstein & Altman