U.S. Study Finds Majority of Medical Malpractice Claims Close Without Payment
National News • March 26, 2007
The majority of medical malpractice claims in a study of seven states were closed without any compensation paid to those claiming a medical injury, the Justice Department's Bureau of Justice ...
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Subject: RE: Medical Malpractice - CWOLP
Posted On: May 31, 2007, 7:44 pm CDT
Posted By: Attorney
Comment:
A "closed claim" study is basically worthless. A "claim" file is opened whenever a doctor or hospital is either sued OR when they feel that they MAY be sued due to patient injury (whether or not due to malpractice). Please follow me here: All reputable studies (particularly the Harvard Closed Claim study) confirms that most patients injured due to medical care, including those injuries caused by true negligence, do not sue. So, in the vast majority of "claims" opened due to reasons other than a legal complaint having been served, there will be some preliminary legal advice to the MD (e.g. don't alter or discard the chart, don't explain anything to the patient) and, when the patient never sues, and the statute goes by, the claim is "closed" with a zero payout. So, a "closed claim" study inherently includes many POTENTIAL claims never brought, which skews the proportion of cases with payout downward, which is (as intended in this forum) cited as "evidence" that "most" malpractice cases lack merit.
There is a concept called burden of proof, which is on the plaintiff. And, a plaintiff must not only prove malpractice, but also (and quite correctly) that this malpractice was the "proximate cause" (different states use different formulations) of the injury. Therefore, the fact that it is often difficult to PROVE both elements, to the satisfaction of a jury, should be no surprise, as the burden of proof of protective of the defendant, and means that only cases of merit which ALSO are proved to the satisfaction of ajury will prevail. In this context, the sheer complexity of medical issues will often confuse the jury to the point where they say "I don't know what happened" --which according to all standard instrucitons, will mean that the plaintiff has not met its burden, and the verdict is for the defendant.
Some comments in this thread are astoundingly ignorant, such as "ATLA lines its pockets with fees" for cases with no payouts. Guess what, almost all these cases are taken on a contingency basis. And, since we lawyers who tend to do these cases generally do know what we're doing, we dont' like to invest time and substantial money (often $50,000 or more) in a case that is actually frivolous, or not very likely to prevail. Guess what: no payout to the plaintiff, no fee AND a substantial loss of time and expenses on the case.
This is another reason why the "closed case" statistic is so misleading. In fact, all leading studies note that the majority of cases actually brought into suit do result in compensation to the plaintiff ("award" is already a pejorative term, like some random cash from the sky, in the absence of an injury). However, in the subset of cases that are either not meritorious (a true minority) or cases which have merit but proof that the outcome would have been substantially different is difficult, or too complex for a jury to follow, the majority of actual verdicts are for the defense. But the majority of cases which DO have merit are eventually settled by the insurers, but usually not before substantial litigation, as the doctors egos, and data bank reporting and the insurance company's desire not to be seen as a "soft target" all come into play, and make sure that even cases of merit are mostly litigated substantially before compensation (not an "award") is given.
By the way, in 16+years of malpractice litigation (I also do clergy cases, but mostly malpractice) I've worked 7 of those for the defense and the rest as a Plaintiff. I've personally brought over a dozen malpractice cases to trial, and never lost the issue of malpractice i.e. in each case the jury agreed there was malpractice. A few of these cases were lost on "proximate cause" for the above reasons and also, at times, for what seem some intangible human factors (e.g. the jury did not like the plaintiff of their family, or felt too much sympathy for doctors in general, and didn't want to add to the "litigation burden).
I would invite anyone who cares to my office to view any of our malpractice files (if you sign a confidentiality agreement) and review the cases we bring --which are in line with what most of the actual specialists in this area bring. You will find legitimate expert reviews of cases thoroughly investigated, and very injured people who deserve compensation.
Most of the plaintiffs, also, are motiviated as much by a desire to prevent similar conduct to others. And, when factoring in the "costs" of the system, you need to quantify that, despite SOME degree of waste and yes, fraud in the system, there is substantial benefit in making medicine better for most people. Particularly the "non-sexy" stuff (like checking lab values when they come in, doing thorough physicals, having nurses double check orders, etc.) is all much influenced, to the good, by the potential for litigation if there is true negligence. These are benefits of malpractice tort litigation, which must be counted against costs.
There is medicaid fraud too, and unnecessary orthopedic surgery, but this doesn't mean we should scrap medicaid and orthopedics.
Subject: RE: Medical Malpractice - CWOLP
There is a concept called burden of proof, which is on the plaintiff. And, a plaintiff must not only prove malpractice, but also (and quite correctly) that this malpractice was the "proximate cause" (different states use different formulations) of the injury. Therefore, the fact that it is often difficult to PROVE both elements, to the satisfaction of a jury, should be no surprise, as the burden of proof of protective of the defendant, and means that only cases of merit which ALSO are proved to the satisfaction of ajury will prevail. In this context, the sheer complexity of medical issues will often confuse the jury to the point where they say "I don't know what happened" --which according to all standard instrucitons, will mean that the plaintiff has not met its burden, and the verdict is for the defendant.
Some comments in this thread are astoundingly ignorant, such as "ATLA lines its pockets with fees" for cases with no payouts. Guess what, almost all these cases are taken on a contingency basis. And, since we lawyers who tend to do these cases generally do know what we're doing, we dont' like to invest time and substantial money (often $50,000 or more) in a case that is actually frivolous, or not very likely to prevail. Guess what: no payout to the plaintiff, no fee AND a substantial loss of time and expenses on the case.
This is another reason why the "closed case" statistic is so misleading. In fact, all leading studies note that the majority of cases actually brought into suit do result in compensation to the plaintiff ("award" is already a pejorative term, like some random cash from the sky, in the absence of an injury). However, in the subset of cases that are either not meritorious (a true minority) or cases which have merit but proof that the outcome would have been substantially different is difficult, or too complex for a jury to follow, the majority of actual verdicts are for the defense. But the majority of cases which DO have merit are eventually settled by the insurers, but usually not before substantial litigation, as the doctors egos, and data bank reporting and the insurance company's desire not to be seen as a "soft target" all come into play, and make sure that even cases of merit are mostly litigated substantially before compensation (not an "award") is given.
By the way, in 16+years of malpractice litigation (I also do clergy cases, but mostly malpractice) I've worked 7 of those for the defense and the rest as a Plaintiff. I've personally brought over a dozen malpractice cases to trial, and never lost the issue of malpractice i.e. in each case the jury agreed there was malpractice. A few of these cases were lost on "proximate cause" for the above reasons and also, at times, for what seem some intangible human factors (e.g. the jury did not like the plaintiff of their family, or felt too much sympathy for doctors in general, and didn't want to add to the "litigation burden).
I would invite anyone who cares to my office to view any of our malpractice files (if you sign a confidentiality agreement) and review the cases we bring --which are in line with what most of the actual specialists in this area bring. You will find legitimate expert reviews of cases thoroughly investigated, and very injured people who deserve compensation.
Most of the plaintiffs, also, are motiviated as much by a desire to prevent similar conduct to others. And, when factoring in the "costs" of the system, you need to quantify that, despite SOME degree of waste and yes, fraud in the system, there is substantial benefit in making medicine better for most people. Particularly the "non-sexy" stuff (like checking lab values when they come in, doing thorough physicals, having nurses double check orders, etc.) is all much influenced, to the good, by the potential for litigation if there is true negligence. These are benefits of malpractice tort litigation, which must be counted against costs.
There is medicaid fraud too, and unnecessary orthopedic surgery, but this doesn't mean we should scrap medicaid and orthopedics.