Medical Malpractice Injuries is the Problem, Not Litigation

It is estimated that 250,000 people die each year in the United States as a result of medical malpractice according to the U.S. Department of Health and Human Services. Approximately 80,000 Medicare patients suffer preventable adverse events that contribute to their deaths; as many as half of those deaths are due to emergency room errors.

In 2003, the nonpartisan Congressional Budget Office stated that “181,000 severe injuries (attributable to medical negligence) occurred in U.S. hospitals [,]”. These numbers show that medical malpractice deaths have worsened during the past ten years. Despite this increase, state governments and legislatures have tried to impede the amount of money recoverable to injured or killed persons and/or their families as the result of medical malpractice.

For example, in Missouri, where I have been a member of the bar since 1976, nearly 1/3 of medical malpractice cases involve surgery in some way. The next largest percentage of medical errors reported there is 18.7% for misdiagnosis leading to severe injury or death followed by 13.2% involving falls or injuries during transport of patients.

Since 1/3 of the medical negligence claims take place during a surgical procedure, it is worth noting that these errors often occur in the last hours of a long shift. Operating room schedules have forced many doctors in facilities to work excessively long shifts, which puts patients at great risk.

One stunning research report from Johns Hopkins stated that patient safety researchers estimated that surgeons in the United States leave foreign objects like sponges or towels or surgical tools inside a patient’s body after an operation 39 times a week. The researchers also estimated that the wrong procedure on a patient is done 20 times a week; additionally, the wrong body site was operated on 20 times a week.

In one recent anecdotal report, a colleague who had a successful hip replacement told me that the preoperative medical assistant identified his right knee as the replacement part that was about to be operated on at this nationally recognized university medical center, when in fact the correct body part was his left hip. That mistake was not made once, but was made three separate times making my friend and colleague extremely anxious about undergoing this procedure at all.

Publicity about medical malpractice lawsuits has been uneven, wrongheaded and has misinformed the public for decades. Jury pools and focus group jurors universally believe that lawyers file frivolous medical malpractice lawsuits for profit that drive doctors out of geographic areas and lead to wildly increased insurance premiums for physicians and their assistants.

The fear that doctors would flee states that lack mandated caps on medical malpractice noneconomic awards is unfounded. Texas adopted a $250,000 cap on noneconomic medical malpractice claims in 2003. In a study that was conducted before and after the legislation capping jury verdicts in Texas, it was found that there was no evidence that the number of active Texas physicians is larger now than it would have been without this legislation. There is no correlation between medical malpractice legislation limiting awards and a number of doctors practicing in a state or locality. It is simply a fallacy to argue that that is the case.

Another often overlooked fact in medical malpractice cases today is that many of the cases that are meritorious because of some egregious medical error causing great harm or death are defended anyway, costing the insurance industry nearly as much in defense costs to their attorneys as it would in indemnity losses.

The American Medical Association found that the indemnity losses nationally in 2011 were $3.6 billion whereas defense costs were $2.5 billion. There is a practical solution to these numbers. Early agreements for mediation or arbitration stand out as a way to resolve obvious medical errors without the need for lengthy discovery and jury trials.

Another false fact in medical negligence cases is that there are too many medical malpractice lawsuits. In fact, reports universally show that only a small percent of people injured, harmed or killed by medical malpractice incidents make claims.

In my practice, that fact stands out in one particular case in which the wife and a mother of four adult children at age 50 died because of the negligence of a neurologist and emergency room physician who chose not to act on the correct diagnosis of a brain tumor. When the woman returned to the hospital, she was sent away with pain medicine and died that night. When the family met with me several months after her death, the decedent’s husband and the others agreed that had the doctors at the hospital explained what had happened and why it happened, they would have never have sought out the assistance of a lawyer. After about three years of intensive discovery, which included expert depositions and motion practice, on the eve of trial the case settled for a fair and reasonable sum. The case should have been settled years before without all of the time and expense that was made necessary by the doctors and hospital involved.

It is a false assumption that some believe that there are many lawyers around the country filing medical negligence lawsuits without merit. That simply is untrue principally for the reason that plaintiffs’ lawyers work on a contingency fee basis and advance all the costs of preparing a case for trial. There is no incentive to take on a bad case, a case with limited damages or even a weak case.

Although a study of plaintiffs’ lawyers concentrating in medical malpractice routinely “reject 80% or more of the requests for representation they receive,” I would say in my practice, the percentage is closer to 98% of inquiries. In addition, cases that have limited expected damages — less than $200,000 — or have a statute of limitations date approaching, are always rejected. In states where damage caps in medical malpractice cases are in place, lawyers are even more reluctant to take on cases. I personally know lawyers in Texas, California and other states who refuse medical malpractice cases altogether.

The law in states attempting to cap medical malpractice lawsuits and damages had been stricken down in Illinois, Missouri, Alabama, Georgia, New Hampshire, North Dakota, Oregon, Washington and Wisconsin. However, at least 35 states have some limitation on medical malpractice damages.

The litigation of medical malpractice cases is not the problem. The notion that 250,000 individuals die in hospitals each year is the medical malpractice problem that needs attention. What is necessary is that the medical profession take whatever steps are necessary to police its practitioners and to minimize the dangers of errors that could be avoided. Reducing awards to victims of medical malpractice does nothing to help in the need for competency in America’s hospitals, clinics and other medical facilities. Healthcare costs and consumer healthcare insurance premiums have continued to rise even as medical malpractice cases decline in number and in value. The awards of medical malpractice for those injured or killed have little or nothing to do with the direct costs of national healthcare.

Kreisman Law Offices has been handling medical negligence case, medical malpractice claims, nursing home abuse cases, birth injury cases and brain injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Alsip, Midlothian, River Woods, Mount Prospect, Elk Grove Village, Wood Dale, Itasca, Inverness, Hoffman Estates, Streamwood, Roselle, Lincolnshire and Lincolnwood, Ill.