Fred Schultz Personal Injury Law Blog on Lawyers.com

Medical malpractice is just a hard thing to talk about.  I mean, it’s hard for everyone. 

It’s nearly impossible for the victim and the victim’s family.  They can’t believe that “but for” the malpractice, their lives would be very different.  This wasn’t supposed to happen to them, or anyone for that matter.  Their loved one is either dead or will never be the same and, as a result, the whole family is impacted personally, financially, emotionally.  It was supposed to be just a routine procedure, or a test they were incorrectly told was “normal.”  How did it come to this?

It’s hard for the lawyer they talk to.  First of all, these cases always deal with terrible outcomes and people who didn’t deserve to have this tragedy happen to them. Then there are the unbelievable advantages the doctor or hospital has under Indiana law – from the medical review panel process to the statutory damage limits.  The lawyer has to decide whether to take the case and invest the three to five years of time (at least) and the money to prosecute the claim. 

It’s hard on the medical provider.  After all, nobody thinks this terrible outcome was intended.  Most medical providers chose their profession for the right reasons, and truly intend to help people.  However, reduced reimbursement rates, increased competition, and ever increasing overhead costs can create substantial demands and pressures on every hospital or medical practice.  Sometimes, we all take shortcuts and we never think the worst case scenario will happen this time, especially to us.

It’s hard for the public to understand the epidemic of malpractice that exists.  They’ve only been told about the “frivolous lawsuits,” not about the 100,000 documented deaths from malpractice every year.  And, they certainly never hear about the studies that have proven that between 20% and 33 1/3% of all patients hospitalized who suffer from a preventable medical error. 

Having said all that, the facts about the malpractice claims are slowly coming out in study after study.  Recently the New England Journal of Medicine published an article on medical malpractice claims and payments.  The researchers looked at closed claims made against doctors in 24 specialties over three four-year periods since 1991.  These were claims filed with one insurance company, not lawsuits filed in the courts – a very important distinction.  After all, anyone can file a “claim.”  A lawsuit usually requires a much for thorough investigation.  The study found a wide variation in the rate of claims between specialties.  The more specialized the physician’s practice is, the more likely they are to face a malpractice claim.  

It makes sense that the more specialized the physician’s practice is, the more likely they may face a claim.  After all, people go to specialists when something bad is happening.  We go to cardiothoracic surgeons when our heart is bad.  We go to neurosurgeons when our brain needs to be operated on.  Bad outcomes happen when serious problems exist, even when doctors do everything they can.  Obviously, not every bad heart can be fixed.  And, it’s certainly true that people make claims after a bad outcome without there being malpractice.  In fact, this study found that 78% of claims did not result in any payment to claimants and, when a payment was made, the average payment was $274,887. 

The fact that the majority of malpractice cases that receive no compensation is not a surprise.  Remember, malpractice cases are also extremely complex.  They require a great deal of investigation.  This means that many more claims will be opened for investigation than there will be lawsuits that get filed.  We should not look at the difference between claims filed and lawsuits filed and see a problem.  Rather, I suggest that the larger number of “claims” vs. payments to claimants means that our system is working. My guess is that the vast majority of the other claims where no payment was made were simply dropped.

A big part of what lawyers who take medical malpractice cases do is to try and weed out claims with merit from those that don’t.  For example, I’d say that our office declines somewhere between 90-95% of the inquiries we receive about possible malpractice cases.  We received four calls just last week about possible malpractice.  We declined all of them.  However, when we do accept a case, we generally have it reviewed by a medical provider who tells us what they think about what happened to our client.  After all, we only get paid when we win, so it makes no make sense for us to accept a malpractice case that doesn’t have merit.

In addition to the first study I mentioned, other studies have also looked into the merits of malpractice claims, and have found that most negligence claims involve medical error and serious injury.  No surprise, these recent studies found that in cases where there was solid evidence of malpractice, there was likely some form of corresponding compensation to the injured party.  Likewise, where the evidence of malpractice was not strong, the vast majority of cases were simply dismissed.

The tort system exists to create and maintain an atmosphere of accountability.  In the context of the field of medicine, this means allowing patients to hold negligent medical providers accountable.  Patient safety must be the priority for everyone, which means actually reducing the rate of error that occurs during treatment.  The best way to reduce medical malpractice claims is to reduce medical malpractice itself, not limit the compensation for the injuries that incurred, not blame patients for bringing malpractice claims, and not demonizing lawyers who file the cases. 

As I said at the beginning, medical malpractice is a hard subject to talk about.  So, when we talk about medical malpractice, remember this simply analogy:  if a negligent driver causes a car wreck and injures another party, that driver is responsible for ensuing medical bills, lost wages, and harm caused by the wreck.  Likewise, if medical providers are negligent, the same rules should apply.  The difference, though, is that medical malpractice cases are much more complicated than a car accident.  What constitutes “running a red light” in medical malpractice is sometimes just as obvious, but sometimes not. 

So, the next time I’m at a dinner party and someone asks what I do for a living, I think I’ll just tell them, “It’s complicated.”