For the last several decades, the medical associations, pharmacy companies, and the insurance companies for both, have contended that there is a “malpractice crisis” in the United States. As a result, they have said, medical costs are escalating and doctors are leaving their medical practices. The intent has been to do two things: to push state and federal legislatures to impose draconian “tort reform” laws, and to influence juries in medical negligence cases to side with the defense to avoid what they are told are bad results of verdicts for plaintiffs.
None of the allegations are true. Where “tort reform” measures have been passed, as in California and Texas, the cost of health care has not decreased. The number of doctors moving to those states after the laws were passed did not increase beyond what would be expected with population growth. “Defensive medicine,” which is claimed to be a major factor in health care costs, has never been shown to influence such costs. Independent studies have shown that the cost of malpractice insurance coverage is less than one percent of health care costs in the U.S. Furthermore, a recent study by Public Citizen has shown that the number of malpractice cases filed has been steadily decreasing over the past 10 years. The imagined “crisis” that was used to push legislatures to restrict the right of injured patients simply does not exist.
During this same period, however, independent studies have shown that 90,000 people die every year in hospitals because of preventable medical errors. And that does not count the permanent injuries suffered during hospitalizations OR the death and injuries occurring during outpatient care. With that figure in mind, why has the number of malpractice filings actually decreased? A simple answer: the risks and costs of pursuing a medical negligence claim are huge and many valid claims cannot be brought. Because of the negative jury attitudes resulting from the medical and insurance company propaganda, juries are reluctant to side with the injured patient. At the same time, the hospitals and doctors have unlimited amounts to spend defending medical cases, so the claimant has to spend very large amounts to take a case and to present it at trial.
Almost all medical negligence cases are handled on a “contingent fee” basis, which means the attorney gets nothing for her efforts unless there is a recovery. That means attorneys must screen cases very carefully to determine if there is a reasonable possibility – in light of jury attitudes and the large costs – of achieving a settlement or prevailing at trial. When medical groups and insurance companies claim there are too many “frivolous” lawsuits or people are playing the “litigation lottery,” ask yourself why an attorney would take on a frivolous case in light of the risks and costs of doing so?
