Medical Malpractice

Myths About Medical Malpractice

  1. The Myth: There is a medical malpractice crisis in this country.
  2. The Myth: Doctors get sued for every little foul up.
  3. The Myth: Medical malpractice claims are the cause of rising health care costs.
  4. The Myth: There are too many frivolous lawsuits filed.
  5. The Myth: Juries are swayed by sympathy for the injured plaintiff and find against the doctor.

The Myth: There is a medical malpractice crisis in this country.

There is a medical malpractice crisis in this country, but it’s not that there are too many medical malpractice lawsuits. Ninety-Eight Thousand (98,000) people die every year from preventable medical errors according to an article in the Journal of the American Medical Association. This is a staggering number. Medical errors are the third leading cause of death in this country behind heart disease and cancer. Twice as many people die of medical errors as die in auto accidents each year (The Medical Malpractice Myth, Baker, Tom page 22) Imagine the uproar if there were a virus or other disease-causing tens of thousands of deaths each year.

It’s important to note that these are preventable deaths. These are not deaths because there is no cure or because there is a mortality risk with every procedure. These are deaths caused by errors–failure to provide standard medical care. They are the result of carelessness and lack of attention. These people died needlessly. The public is becoming increasingly aware that there is something very wrong with healthcare in America. Reader’s Digest ran an article in the June 2007 issue describing the consequences of medical errors. The Wall Street Journal ran an article on the problem on May 30, 2007 “Patients, Families Take Up The Cause of Hospital Safety.” US News and World Report ran an article in July 2007. There is a growing recognition that the Medical errors have become a serious health problem for which there is no solution. Some victims are fighting back especially on the internet.

While the public is generally unaware of the size of the problem, the medical profession has known for years. In the 1970s, the California Medical Association and the California Hospital Association commissioned a study of medical malpractice in California. The purpose was to show that medical malpractice was relatively rare and most of the malpractice claims were frivolous. To the contrary, the report showed an epidemic of malpractice. The study found that in 1974 alone, 24,000 California hospital patients suffered injuries from medical malpractice. The study was quietly put on the shelf. It did not become public until 1985 when it was described by an economist in a professional economic journal. In the 1980s a research team from Harvard was commissioned to study medical malpractice incidents in New York. They reviewed 31,000 hospital records. The conclusion was similar to the California study. In 1984, 27,000 patients in New York hospitals were injured by medical malpractice. The researchers projected that to the entire country and concluded that in 1984, 75,000 people died in this country as a result of medical negligence. It was becoming clear to the medical profession that there was something very wrong about patient safety.

In 1999 the increasing concern prompted the Institute of Medicine of the National Academy of Sciences to study the extent of injuries caused by medical errors, “To Err Is Human.” It concluded that up to 98,000 people die each year because of medical errors. There are numerous other studies. While experts quibble over the exact numbers, it is clear that medical errors are a leading cause of death in this country and represent a serious health risk.

What may be most frightening is that the situation is getting worse. A study of patient safety in hospitals published in April of 2007 found that there were 248,000 potentially preventable deaths in American hospitals between 2003 and 2005. The study also found that the number of injuries to patients had increased between 2003 and 2005. There was a wide variance in injury rates between the safest hospitals and the least safe. This shows that good hospital practices can prevent these injuries. [HealthGrades 4th Annual Patient Safety in American Hospital Study]

While the causes of this epidemic are beyond the scope of this discussion, it is clear that American medicine has two faces. In research and development, it leads the world. When it comes to actually delivering medical care to average people in hospitals on a day-to-day basis, it is seriously deficient. Some hospitals verge on being dysfunctional.

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The Myth: Doctors get sued for every little foul up.

The myth is that the number of malpractice cases is increasing -driving up the cost of insurance for doctors and hospitals and driving doctors out of business. It’s not true. The number of medical malpractice claims filed in the last 10 years has remained about the same.

The total number of medical malpractice claims filed in Indiana in the last 7 years has actually decreased!

The 1970 California Study and the 1980 Harvard study looked at the number of medical errors that caused injury. They then compared that number to the number of malpractice lawsuits that were filed to see if there were more claims filed than actual malpractice experienced. They found just the opposite. Only 1 out of 7 incidents of malpractice resulted in a malpractice claim being filed in the California study. The Harvard report found only 1 of 10 victims of malpractice filed lawsuits. The studies showed that patients were not suing doctors with no justification. Just the opposite: most victims of malpractice never file a lawsuit. The vast majority of doctors – 82 percent – have never had a medical malpractice payment since the since the federal government started keeping records in 1990.

Indiana’s experience is the same. If we apply the National Institute of Medicine’s error rate to Indiana, about 2,000 people die of medical errors each year in Indiana. Yet in 2005, only 52 claims for wrongful death were paid in Indiana. Only 2.6% percent of the deaths caused by medical errors received compensation. There’s not too much malpractice litigation. There’s too much malpractice.

Most of the medical malpractice claims are against a few bad doctors. Just 6 percent of doctors have been responsible for 60 percent of all malpractice payments since 1991, according to data from September 1990 through 2005. Each of these doctors made at least two payments. Unfortunately, at a trial, juries aren’t allowed to hear a doctor’s history of malpractice claims.

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The Myth: Medical malpractice claims are the cause of rising health care costs.

The medical and hospital associations and their lobbyist want the public to believe that malpractice claims are driving up the cost of health care. It’s not true. Insurance for medical malpractice for doctors and hospitals on average makes up about 1% to 2% of the total cost of health care. (The Medical Malpractice Myth, Baker, Tom Page p. 40) Even if the cost of malpractice insurance went up 10% per year (which it has not) it would only increase the cost of health care by .1% to .2%. Increases in malpractice insurance premiums are an insignificant factor in the 12% to 15% increases in the cost of healthcare. Medical malpractice claims are not the cause of rising healthcare costs.

It is true that the cost of medical malpractice insurance has gone up–but not because of increased claim payments. The number of malpractice claims filed each year is fairly stable and hasn’t increased significantly in the last ten years. But insurance companies have raised their premiums anyway.

In 2005, a national study of medical malpractice insurance premiums found that insurance companies were raising the cost of medical malpractice insurance when the claims that they were paying were actually decreasing. The study found that in 2004 a subsidiary of Pro Assurance, the largest insurer of medical liability in Indiana, “increased its premiums by $151 million, or 89%, while its claims payments fell by a third. As a result, in 2004 it paid out only 10 cents in claims for each premium dollar it collected.” Experts consider paying less than 50 cents in claims for each premium dollar evidence of price gouging. If there is a crisis, it is not caused by increasing medical malpractice claims, but price gouging by malpractice insurance companies.

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The Myth: There are too many frivolous lawsuits filed.

Experienced lawyers do not file frivolous malpractice claims. Attorneys who represent patients in medical malpractice claims work on a contingent fee arrangement. That means that the patient’s lawyer gets paid only if there is a recovery for the patient. To take a case to trial requires the attorney to advance $50,000 to $100,000 in out of pocket litigation expenses. These expenses are repaid only if there is a recovery. Before a lawyer files a claim, that lawyer has to be sure that there is a good chance of recovery or else he or she is wasting time and money.

Contrary to popular belief, doctors and insurance companies do not settle frivolous claims. They don’t pay claims just to avoid the publicity or to avoid the cost of litigation. They don’t pay nuisance value. They just do not do it–for a number of reasons. We’ve been representing injured patients in Indiana for 28 years. We have never had an insurance company settle a frivolous claim. We’ve never heard of an insurance company settling a frivolous claim. It just doesn’t happen.

Experienced malpractice attorneys know this and have cases reviewed by doctors before they file a medical malpractice claim. The lawyer wants to have good reason to believe that the claims that they file are legitimate claims that are going to result in a recovery for the client–or they don’t file them. It’s true that sometimes we’re wrong. Sometimes new information comes out during the lawsuit and what we thought was a good claim turns out not to be. We drop those claims. There’s no point in throwing good money (and time) after bad. We don’t settle them for nuisance value.

It’s true that patients sometimes file frivolous claims. Patients who are injured by medical care are often angry with their healthcare provider. In many instances, they don’t know why they were injured, and they are suspicious. Sometimes they file lawsuits on their own, without an attorney, called “pro se” lawsuits. Most of these “prose” complaints are not reviewed by doctors before they are filed and many are frivolous. But they are quickly resolved. The attorney for the doctor files a motion supported by an affidavit with the judge. In most cases, the judge dismisses the case, and it never goes to trial. These cases are a nuisance it’s true, but not a major cost.

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The Myth: Juries are swayed by sympathy for the injured plaintiff and find against the doctor.

The myth is that juries award unjustified recoveries to injured patients because of sympathy. Both plaintiff and defense lawyers know that is not true. Juries tend to favor doctors over patients in medical malpractice trials–even plaintiffs with legitimate claims. Patients are more likely to get a fair review and a recovery from a judge rather than a jury. That is why malpractice defense attorneys routinely ask for jury trials and avoid judge trials. Plaintiff’s lawyers avoid juries if they can and prefer judge trials. There is solid research behind these strategies. Cornell University researchers studied the question of jury bias by comparing malpractice cases tried by juries versus judges. They found that juries find for the doctors more than judges. (From The Medical Malpractice Myth, Baker, Tom page 73)

A law professor at the University of Michigan, Philip G. Peters Jr., published a study on this issue in the May 2007 edition of the Michigan Law Review. He had independent medical experts review cases that went to trial. He asked the experts if the patient had a legitimate malpractice claim. When he compared the medical experts’ opinions against the jury decision, he found that doctors win about half of the cases that the independent experts believed should result in a plaintiff’s victory. Peters was surprised by the finding, “given the documented reluctance of physicians to label another physician’s care as negligent.” If anything, the system is biased against patients. Juries in medical malpractice cases tend to sympathize with the doctors being sued rather than the patients who are suing them. (from the Washington Post, May 8, 2007)

Another part of this myth is that juries are giving higher awards. A study by the RAND Corporation looked at malpractice awards from 1966 to 1999. They found that “real average awards have grown by less than real income over the 40 years in our sample.” (from Daniels, Stephen, and Joanne Martin. 1995. Civil juries and the politics of reform. Evanston: Northwestern University Press.) In spite of what the radio talk shows say, juries are not giving outrageous awards because they sympathize with the patient.

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