Oftentimes I have to tell people who call me with potential claims that the economics don’t warrant our involvement. As I describe it to callers, a claim stands on a three-legged stool: negligence (the health care provider was negligent), harm, and a causal connection between the two.

Most often, the calculation is such that it doesn’t make economic sense for us to get involved. Perhaps negligence will be contested (almost always) or causation is tricky (other things may be causing the injuries). Also, a sad fact is that the level of harm is an important factor in our decision to get involved in the case.

Even if the malpractice by the doctor is egregious, we may decide not to get involved because the harm isn’t sufficient to warrant the time and expense of a lawsuit.

In such situations, I often counsel them to call another malpractice attorney for a second opinion. And if that is not successful, if their goal is to make sure that what happened to them doesn’t happen to someone else, consider filing a complaint with our state’s department of health.

Unfortunately, statistics support the conclusion that this often doesn’t result in any adverse findings for the doctors. So, as a result of both not finding an attorney willing to take on their case, and the state doing nothing, there is little accountability for doctors who make mistakes.

Further, the statistics support the conclusion that most doctors are not the problem: instead there are a few “bad apples” responsible for much of the bad care.

Consider (all statistics from a Public Citizen’s 2007 analysis of National Practitioner Data Bank fines) that 82% of doctors have never had a claim made against them, while just 5.9% of all doctors are responsible for 57.8% of all malpractice payments since 1991.

But with respect to claims of malpractice made to state boards:

8.61% of doctors who had 2 or more malpractice payments were disciplined by their state board;

11.71% of doctors who had 3 or more malpractice payments were disciplined by their state board;

14.75% of doctors who had 4 or more malpractice payments were disciplined by their state board;

Finally, less than 1/3 (33.26%) of doctors who had 10 or more malpractice payments were disciplined by their state board.

Certainly, our job is to recover compensation for our clients. But another aim is holding health care providers accountable for bad care that causes harm. Under our current systems (both state disciplinary boards and filing lawsuits), we are failing. And without accountability, malpractice will continue to occur.