UPDATED: JUNE 2, 2020
Below is an excellent article that we recently read, by Tatum Bronte on the Trial Lawyer Center website. It is reprinted, with permission, on our website and we encourage our friends and colleagues and keep his points in mind when thinking about a medical malpractice case.
Five Myths of Medical Malpractice
This year, widely circulated myths about medical malpractice (and the civil suits that follow) are being challenged. Dr. David A. Hyman, MD, JD, and Charles Silver, JD, point to 5 main claims that are actually myths.
1. “Malpractice crises are caused by spikes in medical malpractice litigation (in other words, sudden rises in payouts and claim frequency)”
Negative. While it is easy for critics to point to “jaw-dropping” settlements, such cases are not representative of most cases. What’s more, they are jury decisions or voluntary settlements, and often times subject to be cut dramatically by the judge. Research also shows that the frequency of malpractice claims and payments per claim have been steady or declining since 1992. Insurance scholars point to underpricing and under-reserving during soft market periods and outside triggers on insurance system that constrain coverage to be the potential cause for spikes.
2. “The tort system delivers jackpot justice”
Here we go again. Similarly to #1, this myth deals with blockbuster verdicts seen in the press. However, it’s important to remember that such decisions are rare. Much of the criticism of the system comes from this coverage, which moves many to believe that the system is random and outlandish. The truth is that those who are compensated are the ones who seek an attorney and have a strong case. Others either make no effort, seek no attorney, or cannot determine if they are a victim of negligence. Contrary to popular belief, the liability system actually weeds out worthwhile cases very well. Consider that in Texas, a state of 25 million, most claims (below 8,000 total) closed without payment (before and after tort reform). If there is a settlement, it is often voluntary which means the case doesn’t see trial.
3. “Physicians are one malpractice verdict away from bankruptcy”
Only about 2% of claims are ever tried. Physicians win 75% of the time. Physicians very rarely pay out-of-pocket costs because attorneys don’t seek such “blood money.” What’s more, most settlements are paid by insurers and the jury verdict award (if it is much greater than the insurance coverage) is rarely collected.
4. “Physicians move in large numbers to states that adopt damage caps”
Damage caps may play a small role in attracting (and keeping) physicians in rural areas and high-risk specialties. However, there is no evidence to definitely support the claims that physicians move in masses to better liability climates. Research is mixed, but many have found no effect of damage caps.
5. “Tort reform will lower healthcare spending dramatically”
Tort reform makes lawsuits less likely and less expensive. Therefore, physicians spend less money to reduce their likelihood of being sued (for example, running extra tests). This “defensive medicine” is reduced, which reduces indirect healthcare system costs. Direct costs, such as malpractice awards and lawsuits, are widely agreed to be “relatively modest” (they make up 2% of the healthcare system costs). Tort reform really only keeps them in check where they already are. Therefore, tort reform might reduce healthcare spending, but not as dramatically as proponents hope.
All facts cited from the work of David A. Hyman, MD, JD, and Charles Silver, JD published on http://journal.publications.chestnet.org