"MEDICAL MALPRACTICE LAWSUIT CRISIS”
I was recently
assailed by a doctor friend of mine, who was screaming about the high cost of
his malpractice insurance.
“If it weren’t for those darn (actually, he used another word, but this is,
after all, an article for readers of all sensibilities) lawyers, I wouldn’t have
to lose an arm and a leg in premiums,” he said. “It’s those frivolous lawsuits
that are causing all of those payouts from the insurance companies. That gets
reflected in my malpractice insurance premiums, and I’m going broke. You know,
it’s driving good doctors out of business. They just can’t afford to pay the
insurance, so they get out.”
This is not a new complaint, of course. Every few years, doctors and their
insurance companies push for “tort reform,” which will set up special rules for
medical malpractice claims, limit the amount of damages that can be recovered,
cap the amount of attorney’s fees in medical malpractice cases, and set up all
sorts of procedural roadblocks – all in the name of doing away with those
“frivolous lawsuits” that are causing your medical costs to skyrocket.
From what I’ve been able to ascertain, the so-called “malpractice lawsuit
crisis” is a lie from start to finish. It’s a red herring, manufactured by the
insurance industry to deflect the blame for bad investment decisions on trial
lawyers and their clients – the victims of medical malpractice.
I have some experience to draw on here. During my over 20 years of legal
practice, I have represented both doctors and patients in medical malpractice
cases. I have never represented a medical malpractice plaintiff whose claims I
thought to be absolutely meritless. I don’t think there are a lot of lawyers
who do. (Now, I don’t discount the idea that there are shysters out there, even
in the medical malpractice field … I know some of them by name … I’m just saying
that things are not as bad as the insurance lobby would make things out to be).
Here's why. Medical malpractice claims are expensive to bring. They require a
good deal of medical knowledge on the part of the lawyer, an investment in
finding and paying for medical experts who are willing to testify, and a
commitment to taking a case all the way to trial. A medical malpractice lawyer
knows at the outset that his case will be hard-fought by the doctor's insurance
company, and that propaganda from insurers that plaintiffs are the cause of
ever-increasing medical costs will not put a jury on the side of the injured
patient. A medical malpractice lawyer simply can't afford to waste his time and
money on a completely "frivolous" lawsuit. To the contrary, there's more money
for a trial lawyer in pursuing easier, less costly types of cases, such as
automobile accidents or even products liability cases.
A couple of examples should suffice. These are the types of cases I have
handled. Each was hard fought by the doctor's insurance company. Each was
subject to various defenses and claims that my clients were trying to get rich
at the expense of an innocent doctor. Believe me, though -- none was
-The patient who went into the hospital one morning for a CT scan of his sore
back and, due to the administration of the wrong contrast medium into his spine,
died a painful death seven hours later. This was followed by an attempt by the
hospital to cover up the negligence;
-The patient who went into the emergency room with a headache and emerged 10
hours later with a permanently disfigured and nerve-damaged arm, due to a
misadministration of contrast medium into his forearm;
-The patient who underwent a routine laparoscopic gall bladder removal who ended
up on life support for nearly two months with Adult Respiratory Distress
Syndrome after her surgeon, who, unknown to the patient, was suffering from
multiple sclerosis at the time, nicked her bowel during the procedure.
The list goes on and on. Were these claims a part of some "lawsuit lottery?" Did
compensating these patients for their injuries add to the cost of your health
care? The answer to both questions is no. The motivation behind medical
malpractice lawsuits is to seek remedies for medical malpractice, plain and
simple. Studies from the medical profession itself rates malpractice as one of
the leading causes of death among patients.
So, what's the truth about malpractice verdicts and ever-increasing medical
costs? Insurance companies would have you believe that runaway juries,
sympathetic to anyone who can hobble into the courtroom with a legal complaint
in one hand and a cane in the other, will award millions at the drop of a hat.
My experience is different. Due to various protections in the litigation system
itself, the fact of the matter is that very few medical malpractice claims ever
get to court. If they don't have merit, they are generally dismissed in a
summary proceeding long before a jury could ever get a peek at them, and if, by
some fluke, an outrageous award were to be given by a jury, a judge or an
appellate court can always overturn such an award.
That leads to the inevitable question – why, then, are medical malpractice
premiums going up, and what can be done about it? The answer to the first is not
complicated, but it has been the subject of a good deal of negative propaganda
from both the insurance industry and the current administration. When one looks
hard at the numbers, a few surprising facts become clear. First, the number of
malpractice claims has actually gone down over the past few years. There simply
is no "litigation explosion" in malpractice claims. Second, insurance company
investments have tanked in many instances, leaving reserves lower and insurance
company profits lower. Insurers must make up the difference somewhere. Raising
malpractice insurance premiums is one (although not the only) way that is
Surprisingly, in the vast majority of states that have adopted draconian
regulations on medical malpractice claims, malpractice premiums have actually
increased, not decreased as promised by insurance companies. See, for example,
Malpractice Caps Fail to Prevent Premium Increases, According to Weiss Ratings
Study,” (subhead “Physicians in States with Caps Suffer 48% Increase in
Median Annual Premiums Even While Insurers Enjoy Slowdown in Payouts”). The
study itself can be found here.
“GE: Malpractice Caps Don’t Work”, and “Rising
Doctors Premiums Not Due to Lawsuit Awards” Similarly, the studies show that
it is doctors, not patients, who are at an advantage when a lawsuit actually
gets to court. See, for example,
Juries Tend to Side More With Doctors, Researcher Finds". See also "That
Malpractice 'Epidemic'? Legal Analysis Finds That Patients Fare Poorly In Court".
despite the fact that fewer malpractice actions are being brought as regulations
force patients to simply forego their legal rights, malpractice itself rages on
unabated. The "fix" doesn’t work. “Tort reform” ultimately ends up as “tort
deform” – a way to deprive victims of their rights while the insurance companies
laugh all the way to the bank.
So, after all of this has been said, the question remains: Isn’t the so-called
“medical malpractice crisis” causing massive trauma among medical professionals?
The answer to
that is not as easy as it may seem. For most of the doctors I have represented,
the biggest threat to their assets is not runaway malpractice lawsuits –
although there are a lot of “asset protection hustlers” out there that would get
doctors’ blood boiling about how they’ve got to stick their money with the
hustler to protect themselves against an out-of-control tort system.
majority of asset protection issues I’ve seen that involve physicians stem from
matters that they have complete control over. They arise generally out of three
partnership or other medical business arrangement gone bad – usually with other
doctors, by the way;
marriage gone bad; and
other business (non-medical) gone bad.
Doctors – like
anyone else – can and should seek good, competent advice long before they get
involved in any of these transactions (presuming marriage to be a "transaction,"
which puts it into a rather cold-blooded context), but they generally don't.
Instead, they tend to get worked up about either the so-called "medical
malpractice crisis" or the general "tort crisis." And while I certainly don't
discount those concerns, they usually aren't the main culprits when it comes to
putting a doc's assets at risk.
When it comes
to protecting both doctors and their patients, the answer is not so-called
“medical malpractice reform” – which doesn’t work, at least not for long. In
fact, to the degree that doctors want to confront that “crisis,” they might want
to start by pushing for insurance company reform. Be that as it may, I believe
that real asset protection for doctors is usually more a matter of each doctor
taking control over their business (and marital) decisions.
Randall K. Edwards practices law in
Nevada, Utah, California and Arizona, with his primary office located in Salt