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The Medical Malpractice "Crisis" Revisited

For the past decade, there has been a palpable sense of fear in the air among medical professionals.

Doctors are terrified of malpractice lawsuits, so much so to the point that some of them are actually refusing to do certain aspects of their jobs:

Billings Gazette, 3/18/2007

“At Eastern Radiological Associates, which is affiliated with St. Vincent Healthcare, three of seven radiologists are willing to interpret mammograms. At Billings Clinic, five of nine will do it.
Meanwhile, the number of certified mammography facilities is declining.

There were about 11 percent fewer places to get mammograms in the United States in 2006 than there were six years earlier, according to the government. That's 1,101 fewer mammography centers across the country."

It must be a particularly dangerous state of affairs when doctors are so afraid of lawsuits that they won’t engage in a procedure that saves lives.

You can also factor in that the malpractice rates for doctors are only just getting back to normal after years of skyrocketing rates. Over a two year period, the national median increase in premiums ranged from 15 to 20%, while in Ohio there was a premium increase that was as high as 60% for some internists.

The insurance companies gave an almost uniform answer for the cause of rate increases. They claimed that there was a flood of medical malpractice lawsuits, most of them “frivolous,” and this was causing such a drain on the finances of the insurers that they had no choice but to raise their rates.

There was also a large public relations push from groups like the American Tort Reform Association, which blamed lawsuits for not only rising insurance rates, but also a decline of enrollment numbers in medical schools.

The picture being painted is very grim.

It is also stunningly inaccurate, ignores key facts and statistics, wildly overestimates the actual number of successful lawsuits, and turns real victims into scapegoats.

Real Numbers, Real Reasons

There is no medical malpractice crisis. There certainly was a crisis in premium rates, but that had nothing to do with a sudden avalanche of lawsuits, “frivolous” or otherwise.

Is There Anything Frivolous About 100,000 Deaths A Year?

According to a report by the Institute of Healthcare Improvement, the number of preventable deaths that occur in hospitals is between 44,000 and 98,000 every year. A lawsuit filed by the family of a victim is hardly a “frivolous” matter.

Nor is the act of filing a medical malpractice lawsuit a “frivolous” and easy thing to do. Attorneys routinely have to hire doctors in order to properly explain to the judge, jury or arbitrator exactly what happened. This is both expensive and difficult, as most doctors are hesitant to testify against their colleagues. No attorney in his right mind would incur these expenses if he wasn’t absolutely convinced that the case of his client had merit.

Are The Verdicts “Enormous?”

According to the Department of Justice, the answer is no. Their Bureau of Statistics just released a study that looked at the data from seven states over four years. Rather then describing a system where anyone who wants to file walks away with millions of dollars, the report notes the following:

- The majority of malpractice cases in these seven states closed without payment.

- Less than 10 percent of the claims in Florida, Maine, Missouri and Nevada had payouts of $1 million or more.

- In Florida, Maine and Missouri, about two-thirds of the claims were closed with insurance payouts of less than $250,000.

- Among persons receiving compensation, insurance payouts were highest for claimants who suffered lifelong major or grave permanent injuries. In Florida and Missouri, claimants with these types of injuries received median payouts ranging from $278,000 to $350,000.

- Insurance payouts were lowest for claimants who suffered temporary or emotional injuries. In Florida and Missouri, claimants who suffered these types of injuries received median payouts ranging from $5,000 to $79,000.

This is hardly the lawsuit happy record verdict bonanza that the American Tort Reform Association describes.

Are Malpractice Insurance Companies In Financial Trouble?

They very well might be, but not for the reasons that you might think. It is interesting to note that in 2001 and 2002, when the stock and bond markets dropped sharply, insurers raised their premiums to compensate for a lower return on their investments. That doesn’t sound nearly as good as blaming it on an “avalanche of lawsuits,” so they instead manufactured a “crisis” in order to justify raising their rates.

At Lewis and Tompkins, we've represented plenty of victims of medical malpractice, and we can tell you first hand that none of thier cases were "frivolous." They were people that literally had their lives ruined due to negligence, and none of them have ever felt "lucky" about having to file a lawsuit.

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Washington, DC 20005

Phone: 202-296-0666

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