Medical Malpractice - Myths and Facts

Gaddis, Herd, Craw & Adams, P.C.
Doctors, Hospitals, Medical Associations and Insurance Company’s insist that medical mistakes and errors are few. They warn that malpractice lawsuits are rampant, are mostly frivolous, and are driving good doctors away because of runaway verdicts and ever increasing malpractice insurance premiums. Most Americans believe these warning as true. They are not aware, however, of the many millions of dollars spent each year to convey this point of view, repeatedly, to the American public. But is it really true? What are the facts?

New York Law School (NYU-Law) is one of the more prestigious law schools in America. It trains lawyers who go on to represent doctors, hospitals, insurance companies, and also individual patients who claim to be victims of medical malpractice. The Center for Justice & Democracy at NYU-Law publishes an extensive study of Medical Malpractice in America. It is called: MEDICAL MALPRACTICE: BY THE NUMBERS. The study is updated periodically and is fully-sourced with nearly 500 footnotes linking the findings to published articles and studies. Some findings in the updated study released in the Fall of 2014 shed light on whether the advertising and point of view presented by the medical and insurance industries are myths or based on fact. Some of the more interesting findings are listed below. You decide!

Q: Is the volume of medical malpractice lawsuits rampant? And, are most just frivolous lawsuits?

The Study found that “Each year hundreds of thousands of Americans are killed or injured by avoidable medical errors. Yet, very few injured patients file claims or lawsuits.” “Only about 1% of adverse events due to medical negligence result in a claim.” “Contrary to many doctor’s beliefs, there is no epidemic of frivolous lawsuits.” (Study, Page 1)

Actually the number or frequency of medical malpractice claims and law suits, as well as the size and amount of payouts, hit a historic low in 2013, and are dropping. (Study, Page 4)

Q: Is the cost of medical malpractice insurance skyrocketing because doctor’s insurance companies are losing money from groundless medical malpractice claims of patients?

Medical malpractice insurance companies are very, very profitable. On average they are making twice the amount of profit that other insurance providers enjoy in the property/casualty insurance industry. In fact, the med mal insurance industry has had seven years of underwriting profit – something completely unheard of in the general property/casualty insurance sector. (Study, Page 53.)

Also, the Study found that medical malpractice premium payments are not increasing. The decline in physician profitability, if any, is a result of health insurance companies reducing their fees, and denying procedures and services that doctor’s recommend but the insurance company says is unnecessary. (Study, Page 56)

Q: Are doctors leaving the State, or even the practice of medicine, because of skyrocketing medical malpractice premiums?

The Study evaluated the stated reasons cited by newly trained physicians for leaving the State of New York. Notably, the “cost of malpractice insurance” was just about dead last on a list of the doctor’s factors for leaving. The most important factor cited for leaving the State was “proximity to family.” Even the general category “Other” outranked the “Cost of Malpractice Insurance.” And interestingly, New York’s medical malpractice liability laws were not even mentioned as a consideration in physicians’ decision to leave the State.

Q: Are tort reform laws, like limits on the amount of damages injured patients can recover, really needed? And do they promote or deter safer medical care for the public?

The Study reviewed the facts in Texas. After Texas passed tort reform laws with severe limits on medical malpractice lawsuits, including stringent “caps” on the amount of damages patients could claim. The numbers showed that the rate of preventable medical errors actually increased “consistent with hospitals gradually relaxing (or doing less to enforce) patient safety standards.” (Study, Page 83). Interestingly, malpractice insurance premiums paid by doctors have dropped at the same level in both the States that have adopted, or rejected, tort reform laws and caps on damage awards. (Study, Page 61). Also of concern was the Study’s finding that “tort reform” laws actually prevented legitimate cases of medical malpractice from being pursued.

Q: Are medical malpractice law suits unnecessary because hospitals operate safely, and take all necessary steps to safely prevent patients from contracting hospital borne infections?

Page 65 of the Study states the fact that “On any given day, approximately 1 in 25 U.S. patients has at least one infection contracted during the course of their hospital care.”

Q: Do medical malpractice lawsuits by patients have any effect on patient safety?

The Study found that patient safety is actually suffering because so many patients choose not to go forward with a valid claim of malpractice. It cites a study by Tom Baker at the University of Pennsylvania, analyzing Colorado and Utah malpractice claims, which found: “In Utah and Colorado, the team looked at about 15,000 hospital records and found conclusive evidence of a serious injury from medical malpractice in the records of 161 patients. How many of those 161 patients brought a claim? Four.” (Study, Page 89).

No one wants to believe that health care providers may injure, rather than cure, them. But is the public basing their understanding of what is the status of medical malpractice in America on facts, or well-packaged and repetitive advertising and rhetoric of the medical and insurance industries?