Researchers at Brigham and Women’s Hospital in Boston found that claims paid by physicians’ insurers have been substantially decreasing over the last two decades. However, the amount paid on each claim has been increasing. These trends will not be surprising to attorneys who represent injured patients. The reason for both trends is relatively simple: the cost of pursuing a malpractice claim has become so great that few attorneys can afford to file a “modest” claim for damages. As a result, there are fewer cases filed, but those that are filed are in cases with large damages, and thus larger amounts are paid on the claims on average.

The study was interesting, also, in breaking down claims paid by various specialties, such as dermatology, neurosurgery, etc. The largest amounts paid were for neurosurgery. Again, most claimants’ attorneys will understand that, because of the higher cost of pursuing such a claim, only the larger damages claims can be justified.

Part of the reason for the high cost of such claims is that neurosurgery experts are very expensive even when one can find a neurosurgeon who is willing to testify against another neurosurgeon. Some of the experts in neurosurgery sub-specialties charge as much as $1,200 an hour to simply review records and consult with an attorney. Contrast that with family practice claims, where it is much easier to find credible experts and charges are usually $500 an hour or less.

The breakdown on types of claims was also interesting. The most common claims involved misdiagnoses, surgical errors, and treatment-related mistakes. Roughly 32 percent of all paid claims involved the patient’s death.

The conclusions of the researchers may not be completely accurate, since they are assuming that the decrease in claims means that they have become more difficult to win at trial. While that may be true (in part because of the anti-lawsuit propaganda campaign by insurers and medical groups — which tends to taint jury verdicts), the reality is cost is a very big driver of decisions about bringing a medical malpractice lawsuit. A typical case that goes to trial may cost the attorney $100,000+ in out-of-pocket costs. To invest that much money, not to mention other resources in time and effort, requires a careful weighing of risks and benefits before filing a lawsuit.

Attorneys for medical malpractice claimants know that this is not a law practice for the faint-of-heart. Almost all such claims are handled on the basis of a contingent-fee, which means a loss not only results in no payment for the attorney’s time, but also means the attorney absorbs the costs that have been advanced.