Frivolous Medical Malpractice and Tort Reform: Part II in a series

 

 

If you missed Part I, find it here.

 

If you buy into the idea that “frivolous lawsuits and ridiculous payouts to dead beat patients working the system” as one of the top causes of high medical costs, this post may be an eye opener for you.

 

As noted in this and other posts, as a nurse life care planner and expert medical witness, I have a good handle on what the costs are for catastrophic injuries, as well as what it involves to file a medical malpractice suit.  I can tell you from my professional experience that filing this type of suit is not for the faint hearted.  And, the incidence of a plaintiff getting a huge payout so they can retire and rest on their laurels is so rare as to be non-existent.

 

Those who subscribe to the opinion that monetary caps would take a significant burden off the healthcare system are usually basing their information on a 2009 Harvard study that at first glance would suggest that 40% of suits filed in this arena are frivolous.

 

However, according to research, including this from the Protect Consumer Justice website “…plaintiffs often need to file a claim just to get the information necessary to determine whether to proceed. And often once that information is revealed plaintiffs realize they don’t have a legitimate claim…and don’t proceed with the lawsuit. Those cases are included in the 40 percent of claims that were determined to be “without merit.”  This is due to the difficulty of obtaining the information from physicians, hospitals, surgery centers, etc. it takes to determine whether the suit is valid without having to force the issue by actually starting the process.

 

In fact, most people injured by malpractice don’t sue. Law professors David Hyman and Charles Silver estimate that there are nearly 12 times as many injuries caused by medical negligence as malpractice claims. “Of the few payments to injured patients, the vast majority go to those who are killed or suffer significant, permanent injuries, such as quadriplegia or brain damage that require extensive, long-term, medical treatment.”

 

According to The Hill’s Congress Blog “… well-known tort reform advocate Victor Schwartz, (who) admitted in a 2004 Los Angeles Times article, ‘There is no question that it is rare that frivolous suits are brought against doctors. They are too expensive to bring.’

 

The Hill’s post continues:  “A federal law reducing medical liability would intensify the burdens on patients and their families impose additional obstacles and ultimately leave them to find other ways to pay for medical costs caused by the health industry’s negligent or reckless acts. In most cases, the costs would fall on the rest of us through higher taxes and higher health insurance premiums. Meanwhile, the health industry would be free from taking responsibility.”

 

“After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim,” the Washington Post reports.

 

All of the sources concurred that the real need is transparency of patient records, fewer medical errors and better access to the judicial system.

 

As retired federal judge H. Lee Sarokin writes, “Under what other circumstances would we punish persons who have legitimate claims because others have filed frivolous ones? Do we reduce Medicare payments to honest doctors because others have made fraudulent claims?”