Medical Malpractice Myths

From time-to-time we publish in our blog letters and articles written by others on subjects of interest to us. Here are two excellent letters published in the March 1, 2013 issue of The Florida Bar News. Each addresses medical malpractice issues.
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Med Mal

This is a response to Robert William Patton’s defense-oriented letter on med mal experts. I have done complex medical malpractice cases for plaintiffs for the past 40 years and never filed a “frivolous med mal case.”

The sole cause of medical malpractice is bad doctors and health care providers. Nothing has ever been done to attack and remedy that root cause. Over 100,000 patients a year are killed by medical malpractice. It is so bad now that every patient should have a “patient advocate” with him/her when entering a hospital. The “Public Citizen Health Letter” has rated Florida one of the 10 worst states for pursuing disciplinary actions against physicians four times since 2001. The Florida Agency for Health Care Administration is a joke. The only thing that keeps healthcare providers accountable is med mal suits.

The defense bar and other conservative elements have put up every obstacle possible to prevent plaintiffs from filing these suits. The biggest obstacle is the presuit requirements, which are designed for doctors to investigate the case and, hopefully, settle them before suit is filed. After filing hundreds of medical malpractice cases, I have never had a plaintiff make a settlement offer during the presuit stage, before the complaint is filed. The defense always comes up with some “expert” to file an affidavit to refute the plaintiffs claims in pre-suit.

Talking about “hired guns,” that is where you need to begin your study. During the last 40 years, I have settled or carried to jury verdict each of the cases I have filed, and I have never lost one, in full. I have lost two jury trials, but only after settling with a co-defendant in each case. How is it that the defense was always able to find a “medical expert” to refute the claims during the pre-suit stage, but either settled or lost at jury trial on all my cases but two? Pre-suit requirements are a joke.

The most recent hurdle is this new one of “qualifying expert witnesses.” As this has played out, it is a joke, too. The state collects the fee but does no investigation whatsoever. It is simply another hurdle for plaintiffs in med mal cases and a source of revenue for the state.

Medical doctors who make six- to seven-figure incomes each and every year they practice are only required to carry $250,000 worth of med mal insurance coverage. After the court costs, attorneys’ fees, and statutory lien payments are taken out of the settlement/jury verdict, there is not much left for the seriously injured plaintiff to pay for future medical costs. What happens then? Well, what happens is that those plaintiffs go on Medicaid when their funds run out, and the taxpayers pay for their future medical bills. The taxpayers did not commit medical malpractice; some doctor did.

Want to really revamp and change this entire system? Then beef up and properly fund the Florida Agency for Health Care Administration and start getting rid of bad doctors and other healthcare professionals. Healthcare in the United States is poor, at best. And it is unnecessarily expensive because of unbridled capitalism, which does not work in healthcare, just like it does not work in delivery of electric power. The profit motive, as practiced by our healthcare insurance industry, should be done away with, in favor of a single-payor system.

Thomas C. Staples
Pensacola ____________________
CHEST, the peer-reviewed official journal of the American College of Chest Physicians, recently published an article under its Medical Ethics category titled “Five Myths of Medical Malpractice.”

The piece explains to its physician audience that there are five myths of medical malpractice that have wide currency in medical circles: Malpractice crises are caused by spikes in medical malpractice litigation (i.e., sudden rises in payouts and claim frequency); the tort system delivers “jackpot justice;” physicians are one malpractice verdict away from bankruptcy; physicians move to states that adopt damage caps; and tort reform will lower healthcare spending dramatically.

This is a courageous piece of peer-reviewed literature, as it dispels myths that many inside the medical community, and many in the general public, have clung to for years. But the facts prove otherwise, and it is time we all consider the facts.

Payouts have fallen dramatically since 1992 in states with and without damage caps; there have been no litigation spikes; patients who are true victims of malpractice recover money far more often than patients treated nonnegligently; the overwhelming number of negligently injured patients never initiate claims; most severely injured patients are undercompensated; as many as 85 percent of initiated claims are closed without payment; only 2 percent of claims are actually tried; 75 percent of tried claims result in favorable verdicts for the healthcare provider; out-of-pocket payments by physicians are so rare they are virtually nonexistent; at best, damage caps have been responsible for marginal (less than 3.5 percent) increases in high-risk specialties practicing in rural counties, no increase in urban centers, and the results of data analyses suggesting rural increases are mixed and conflicting; the data fails to support any meaningful drop in healthcare spending (0.4 percent to 1.6 percent), even in the face of significant reductions (30 percent) in malpractice premiums; and some data suggested healthcare spending increased in states like Texas after damage caps and other malpractice tort reforms were adopted.

Most importantly, the authors address the issue of patient safety. Isn’t that what it is all about? The authors rightly conclude that “damage caps do little to improve the malpractice system.” Although damage caps can “dramatically reduce claims frequency, payouts per claim, and insurance premiums,” the data prove that tort reform does NOT do any of the following: make healthcare safer; reduce healthcare spending; compensate those who are negligently injured; or make the liability system work better. The article explains, “The best reforms are patient safety initiatives that reduce the frequency and severity of medical mistakes. Ideally, the liability system would encourage providers to adopt patient-protecting innovations.”

But, as the authors aptly state, the tort system is hamstrung, due to tort reform, in its ability to improve things because damage caps, and other reforms that protect negligent doctors and hospitals, “insulate providers from many of the costs of medical errors.”

If we want a safer healthcare system, and a safer world, we need to make the tort system more efficient, with sharper teeth, not less. Damage caps fail to make our system safer. To the contrary, the more our judicial system tolerates negligent care, the less our healthcare system demands safety and vigilance. Meanwhile, where we have tort reform, we gain next to nothing.

Stuart N. Ratzan Miami

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