I was reading yet another article in a medical publication decrying the fact that doctors are sued, and insurance companies pay money, even when no malpractice occurred. Here’s a quote from one such article, in which a physician fought his case and won:

“I won that suit. It was a weeklong trial,” he said. “I can’t tell you how many physicians came up to me and said, ‘I settled because I was scared for myself and my family. I wish I had fought it.’” He thinks physicians should be encouraged to defend legitimate suits in cases where there is no error, even though lawyers on both sides prefer a settlement.

The last sentence is nonsensical. It talks about a “legitimate suit” in which “lawyers on both sides prefer a settlement,” but then says the case did not involve an error. Of course, there has to be an error, and a serious one, in order for a malpractice case to go to trial!

And it has to be more than just an error, it has to be one that reflects a deviation from the standard of care for a particular physician. In other words, it has to be an error that would not have been made by a reasonably prudent physician in the same or similar circumstances. And, in addition, it has to be an error that resulted in serious harm to the patient.

Doctors and their insurance companies love to talk about “frivolous” malpractice cases and the money that is paid to patients who do not even have a valid claim. Our judicial system has numerous safeguards that practically guarantee that a non-meritorious case will never see the inside of a courtroom.

First, the attorney who takes the case is handling it on a contingent-fee basis, which means she has every reason in the world to turn down any case that is not meritorious. The time and money that an attorney will spend on a malpractice case is a powerful incentive to shy away from weak cases.

Second, the attorney has to obtain credible expert support both for the claim of negligence and regarding causation in order to go forward with a case. The defense attorney always has the option of filing a motion for summary judgment of dismissal, without even presenting expert support for its position that a case should be dismissed. If the claimant’s attorney is unable to respond with affidavits from experts supporting the claim, it will be summarily dismissed.

Finally, if the claimant has such support and the claimant’s attorney is willing to put a large amount of resources into the case, it will be presented to a jury that has been so brain-washed by medical groups and their insurance companies, that decisions in favor of the claimant consistently are fewer than 10% of the cases that are tried.

The injustice in our malpractice legal system isn’t that too many healthcare providers are sued when they didn’t do anything wrong. It is that too many patients injured as a result of medical errors are unable to find an attorney who is capable of fighting the battle outlined above, and when they do fine someone, the odds are stacked against them because of the high costs and risks of pursuing a case to trial.