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The Medical Malpractice Myth

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We hear many politicians these days calling for tort reform, claiming that the medical malpractice system is broken, and blaming personal injury attorneys. And as time goes on, we will probably hear more of the same rhetoric regarding medical malpractice reform. For example, in 2006 President Bush said, "Lawsuits are driving many good doctors out of practice" and malpractice lawsuits have sent doctors’ malpractice insurance premiums "skyrocketing." You may also hear arguments such as "Greedy trial lawyers are clogging the system with frivolous medical malpractice lawsuits" or "Out of control juries are awarding exorbitant amounts to claimants."

But how much is there behind these statements? Have they really done their homework by studying the data, or have they caved in to the pressures from the insurance industry and the medical community?

The Public Citizen’s Congress Watch, a non-profit consumer watch group in Washington, DC, wanted to find out. In January of 2007 they released a report entitled "The Great Medical Malpractice Hoax." In it they revealed a number of significant findings, but it all boils down to the fact that there is no medical malpractice lawsuit crisis. But more importantly, they found that there is a rising health care crisis.

Using data available in the National Practitioner Data Bank Public Use File (NPDB), Public Citizen’s reviewed medical payment statistics from 1991 to 2005. The NPDB collects information on payments from medical malpractice claims against doctors, payments made by state-run insurance funds and health care providers who are self-insured. Disciplinary actions against physicians by their state medical boards or by hospitals are also included in the data.

There were four key findings in the Public Citizen’s report:

(1) Medical malpractice payments are actually declining. Since 1991, the report states that not only have the actual number of medical malpractice payments remained the same; the dollar value of the payments made to patients has also remained flat.

In 2006 U.S. Rep. Nathan Deal (R-Ga) said, "there is no denying the fact that there is a medical liability crisis in this country." However, both the number and value of malpractice payments have declined since 2001. From 2001 until 2005 the actual number of malpractice payments dropped 15.4 percent, from 16,588 to 14,033. And when adjusted for inflation, the dollar amount of payments rose less than one half of one percent annually from 1991 to 2005 or from $2.11 billion to $2.14 billion.

The NPDB data also showed that when adjusted for inflation, the average payment made to patients from medical malpractice verdicts dropped from $284,896 in 1991 to $260,890 in 2005.

(2) Payments correspond to the severity of the injury. Statements are often made that most medical malpractice claims are frivolous or juries award verdicts for insignificant injuries. The fact is that in 2005, over 62 percent of all payments involved death or major injuries, and over 32 percent of the malpractice payments were for the death of a patient.

The data also showed that the dollar value of jury awards is suitable based on the severity of the injury. A full 82 percent of the total value of malpractice payments is for the most severe injuries. And in 2005 less that 1 percent of the value was for "emotional injury."

Physicians and insurance companies also complain that jury awards have become excessive. The data shows that since 1991 less that one half of one percent of the total payments were for a million dollars or more, and in 2005 were less than 3 percent of all payments made.

The assertion by proponents of medical malpractice reform that $1 million settlements are driving doctors from their practice is just not substantiated by the data.

(3) Patient safety is the real crisis. One of the significant contributors to high malpractice insurance rates is the inability of doctors to police themselves, which puts patients at risk. Too often the state medical boards allow doctors with excessive medical malpractice payments to continue to practice medicine. For example, the NPDB showed that state medical boards have not disciplined 33.3 percent of doctors who had paid out 10 or more medical malpractice payments.

Unfortunately, the highly qualified, successful doctors are being forced to pay higher and higher premiums because of a few bad doctors. In fact, 82 percent of all doctors have never paid a medical malpractice payment. But according to the NPDB, a mere 5.9 percent of physicians have paid out 57.8 percent of all of the medical malpractice payments, and each of them have made at least 2 payments. And doctors with 3 or more malpractice payments paid 32.8 percent of all payments.

The study also showed there has been a significant increase in common, preventable errors. Avoidable errors, such as leaving foreign objects inside a patient or operating on the wrong body part, fell from 1991 to 2003 to a low of 503 errors in 2003. In 2004 and 2005, however, the number of preventable errors spiked to 690 and 705, the highest in the last 11 years.

(4) Improving patient safety will save lives. In addition to reporting the problems with patient safety, the Public Citizen’s report also made numerous suggestions to improve patient safety. Some were requests for Congress and states to take action, while others suggested improvements to be implemented by hospitals.

Congress should establish a national mandatory adverse event reporting system as well as overhaul the Medicare Quality Improvement Organizations.

Hospitals can implement systems and procedures to prevent many of the errors, such as:

  • Investment in Physician Order Entry Systems can eliminate medication errors miscommunication and check for drug interactions.
  • Implementation of the Joint Commission on Accreditation of Healthcare Organizations’ would eradicate all surgeries on the wrong part of the body and amputations of the wrong limb.
  • Fatigue-induced errors can be reduced if duty hours were limited to 80 per week, not an average of 80 per week over a month period.

States should also improve physician oversight by having governor-appointed medical and disciplinary boards, provide more funding for the medical boards and staffing, and improve patient access to physicians’ disciplinary data on the medical board website.

Until these recommendations are implemented by all states, the likelihood of permanent injury or death from medical malpractice or negligence will continue to rise. The partners of Wooten, Kimbrough, Gibson, Doherty and Normand are Board Certified Civil Trial Lawyers and have the experience and resources necessary to handle all types of medical malpractice cases. We have been successful in obtaining settlements for our clients for medical negligence, medical malpractice, hospital abuse, and nursing home abuse. If you have a loved one who has been the victim of medical malpractice, contact one of our attorneys at 1-800-235-7060 or you can email us via our website at www.whkpa.com/contact. The consultation is free and there is never a fee unless we win a settlement for you.

Source: Public Citizen’s analysis of malpractice payments as reported in the National Practitioner Data Bank Public Use File for the years 1990 to 2005.

5 Comments

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  1. Mike Bryant says:
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    All very important point, but many of them don’t care about the truth, it isn’t about passing a bill, it’s throwing garbage up there and saying no. Even with the ill advised recent statements from the administration the votes just aren’t there from the group of NO.

  2. Jim O'Hare AIC AIS VP med mal claims says:
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    Pretty good article. It took 10 years for me to agree with a Bush quote ! Partially anyway. We need plaintiff attorneys. What is it that we want fixed? Are we willing to do it, if it takes bread off your table? There is alot of money involved.

    In 25years of med mal claims, most if not all( i know that I am generalizing) involve some sort of fatigue, communication failures, usually at shift change and/or poor staffing ( See fatigue) Spend the money there.More nurses

    There will still be plenty of wrong sided surgeries. you cant fix stupid nor legislate against gravity. Med mal will never be eradicated, so lets skip that one.

    I like – Loser pays all costs. Put up – shut up

    RE caps we need them but just for the subjective one, the one that cant be measured nor weighed. How about ten times your best earnings year, or your parents. You pick, but there has to be a ceiling. Infinity isnt a number.

    Mandatory structured settlements- good for everybody as a protection.

    Mandatory insurance for docs. I need it to drive but Dr X can change the oil in my brainpan without it? Argue for that.

    A jury of peers. Listen I get it why plaintiffs do not like it, but it was a goal of our founders. Goober doesnt get antibiotic sensitivities and shifts to the left. Just liek he doesnt get the car dealers negative equity applications.

    Arbitrations- same day in court, just a different, quicker, cheaper, fairer forum. Did you hear about that $11 mil award in Florida?

    Costs of settling any case always goes up. What is it that we are trying to fix? fairness, the system, med mals causes, tort reform, healthcare etc?.
    regards Jim

  3. Gerry McGill says:
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    Jim, interesting post. Surprise, surprise, I disagree with several points. “Loser pays” won’t work for a couple or reasons. A plaintiff who suffers a catastrophic loss, whether there is malpractice or not, doesn’t have the ability to pay costs and attorney fees. Next is arbitration. It is neither quicker, cheaper, or fairer. You can have your case heard before an independent judge or jury by paying a one time filing fee which ranges between $250 to $500 in most states. By contrast, most arbitrators charge that much per hour. And fairer? Since both parties split the arbitrator’s cost would you have absolute confidence in the arbitrators impartiality once you recognized that you have only one case but the insurance company may have utilized your arbitrator many times in the past and probably will continue to do so in the future?

    The best solution to some of the legitimate problems that you note is early mediation in the
    discovery stage before litigation is filed. In such a mediation the potential parties agree to meet with a neutral mediator. A mediator does not fill the position of a judge or arbitrator. His function is not to make decisions, but rather to help both,or all, sides evaluate the strengths and weaknesses of their positions and those of the other sides. Generally all parties meet in a joint session with the mediator and then break up in separate groups and meet with the mediator separately. The important thing about mediation is that all aspects of the mediation are CONFIDENTIAL. No statements by any party, settlement offers, concessions, or apologies can be used by any party in any other proceedings.

    Such a relatively candid and cooperative approach can yield great benefits such as avoiding naming doctors as defendants who shouldn’t be named and are dropped from the suit after discovery is complete. Sometimes the injured party or his family want an apology or perhaps some contributing condition changed such as hiring more nurses. Many injured parties would be willing to accept structured settlements that would provide for future medical care. In short there are a lot of things that could be done to deal with the real problem of medical errors short of draconian measures such as caps on recovery for the most seriously injured or outright immunity for hospitals and doctors.

    Incidentally, although I am a member of InjuryBoard, I do not handle med-mal cases.

  4. Mark Bello says:
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    I am an InjuryBoard member who handles no claims; I fund litigation and don’t practice law, so caps are meaningless to me. Caps simply limit the amount that I can finance in any one case. It is prudent for me to limit myself that way, anyway. Thus, with absolutely no “skin in the game”, allow me the following observations: 1. Loser pays is a terrible idea because it will have a chilling effect on the pursuit of legitimate cases. Defendants can usually afford the pursuit of justice; Plaintiffs cannot. That is why the contingent fee was created. Loser pays takes us back to the time when the rich won and the poor lost, no matter which one was right. 2. If a 25 year veteran claims rep knows that most med mal claims happen at a certain time and are caused by fatigue, then he knows that lawsuits that puruse that cause are legitimate and he should be working to make the changes necessary to increase safety in hospitals. You will not get an opposing argument from a single lawyer that spending money to improve safety in hospitals is a good thing. 3. Caps are absurd on their face and they are unconstitutional. We can argue about “jury of your peers”; I will listen to that, but to say that the amount that a jury might award is “infinity” is nonsense. It is quite rare to see what the tort reformers call “jackpot” awards. They are the absolute exception, not even close to the rule. Caps shift the burden of support from the perpetrator to the victim and the taxpayer and that is more of a travesty than any exceptional, occasional large verdict. 4. Mandatory insurance: Good idea. Limits should be $5,000,000 so that catastrophic injury is not “capped” by artificially low limits. 5. Mandatory structures: Bad idea. In this economic climate, most plaintiffs end up selling their structures to a structure buy-out company for pennies on the dollar. Lawsuit Financial gets many requests to buy structures; we refer these people to others. I do not pass judgment on those who purchase structures; I can only say that there is a big market for these transactions and they are highly discounted. Thus, everything the attorney tried to do for the client in creating the structure (protect the plaintiff’s money over a long period of time) is undone with the structure sale. 6. Arbitrations: I agree with Gerry; mediation is a better solution. Taking away someone’s constitutional right to a jury trial is no better than caps, from a constitutional point of view. Mediation is a voluntary effort to reasonably settle a legitimate case. 7. Healthcare costs: Contrary to the rhetoric, malpractice suits are a very small part of healthcare costs (1/2 of one percent according to most industry analysts). Sorry to be so long-winded, but these anti-plaintiff arguments bother me on a very personal level. Jim: Keep challenging InjuryBoard members. We enjoy the challenge. Regards, Mark

  5. Jim O'Hare AIC AIS VP med mal claims says:
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    “Thanks for our response Mark. Loser pays would not interfere with contingency. Good cases get to be litigated. When a Doctor wins his case, it still costs me plenty- hundreds of thousand of dollars.. If I lose I double my cost. If I am not confident- I settle.
    Fatigue is my observation.

    I dont insure hospitals. Staffing is always an issue and penny foolish. RE caps they are not unconstituional everywhere. Cap only pain and suffering per my post. Pain cant be measured- period. If the plaintiff cant earn his 200k/yr and he is 55. 10 yrs of 200k is fair by me.

    Structures protect the plaintiff from uncle vinny with a sure bet in the 5th race. There are predators, we see them on TV. Another argument. The numbers of plaintiffs with no money left is staggering and sad.

    Mediations are not and not binding, therefore meaningless. A panel just awarded 11 mil. Medirionas have no teeth. Arbitrations do not cost taxpayers and is just a different forum. It is still your day in court.

    I am not anti plaintff, sorry you took it that way. My goal is to make the system better, quicker, less expensive, with an eye to getting more money to the injured wit fairness to the docs that are defensible.
    regards jim