Too bad the article doesn\’t cover the costs of legal expense to defeat these frivolous claims. The Med Mal crisis obviously isn\’t the awards being paid for indemnity………it\’s the unecessary litigation costs to defend. When will people wake up to the fact that only people they\’re suing are themselves? ATLA sits back and stuffs it pockets with legal fees while doctors and patients pay higher insurance premiums. We should adopt English law in this country. If the plaintiff loses, he or she gets nothing and pays the defense costs. The problem with our outdated \”contingency fee system\” is that the attorneys have nothing at risk.
Hi Bill,
It was interesting article but it didn\’t state that no malpractice had occurred.
It stated about the limited payouts that occurred but you correctedly sited that it did reflect litigation costs for those claims which did enter litigation.
One thing though, please don\’t mistake no payment, to no liability as these things do necessarily mean the same thing.
I also hope that you never have a loved one injured by a medical professional.
The majority of mal-practice claims don\’t generate that much in legal fees either. Most \”claims\” are not followed up on since most of them were intiated by patients who cool down a bit from the time they see their attorney.
As an insurance broker who only sells professional liability insurance to physicians this article basically states nothing. We know that the majority of cases close without indemnity payment. Most insurance carriers spare no expense when it comes to defending their doctors. This expense however translates into higher costs for the doctors. Some companies are even going so far as to file suit against plaintiff attorneys who file frivolous claims. The Trial Lawyers Assoc. is one powerful group and legislators who benefit from their fund raising will make no changes which will truly help this situation.
County, 513 A.2d 1307 (Del. 1986).
Failure to pay workers\’ compensation benefits, standing alone, does not support federal civil rights damages claim. State v. Farrar, 7 Conn. App. 142, 508 A.2d 46 (1986).
Job applicant, injured while taking physical agility test, is not an \”employee\” and is not entitled to comp benefits. Sellers v. City of Abbeville, 458 So.2d 592 (La. App. 1985).
New York holds that worker killed while committing an on-the-job theft is still entitled to benefits. Richardson v. Fielder Roofing, Inc., 67 N.Y.2d 246, 493 N.E.2d 228 (1986).
New York disagrees with Florida and New Jersey; off-duty basketball injury should be covered — public relations benefit. Malan v. Town of Yorktown, 488 N.Y.S.2d 100 (A.D. 1985).
City liable for injuries to deputy sheriff who was assisting police officers. Winkler v. County of Westchester, 488 N.Y.S.2d 101 (1985).
Illinois law prevents dual recovery of comp benefits and disability pension payments. Sellard v. Board of Trustees of R.M. Firemen\’s Pension Fund, 478 N.E.2d 1123 (Ill.App. 1985).
Volunteer fire chief who suffered heart attack at annual ceremony entitled to benefits. Coburn v. Hewlett Fire Dept., 490 N.Y.S.2d 644 (A.D. 1985).
Volunteer firefighter\’s widow must receive death benefits; husband drowned at SCUBA class that was recommended, not required. Loper v. Cascade Twp., 352 N.W.2d 357 (Mich. App. 1984).
Uniformed officer in collision while returning home did not suffer a work-related compensable injury. Westberry v. Town of Cape Elizabeth, 492 A.2d 888 (Me. 1985).
City may not deduct workers\” comp benefits from disability pension benefits. Bannan v. City of Saginaw, 362 N.W.2d 668 (Mich. 1984).
City could not sue third party who negligently injured its employee (to recover compensation paid for injury). Barme v. Wood, City of Huntington Park, Intervener, 207 Cal.Rptr. 816, 689 P.2d 446
Make this Reference BAC, patient still above your shifty insurance State Farm / Mercury / Tenet Healthcare.
Benevolence characterizes the true goodness of the mind and spirit, the unbiased kindness to do good. It confers thought and regard for the welfare of other people, and finds expression in sympathy and kindly gentleness and compassion, with charitableness and kindness.
This is just how we like it. The medical costs incurred by injured patients will be paid by the states and the federal governments (all taxpayers); the lost earnings by Unemployment, and the the patient and their families can go on welfare; not the wrongdoer! We like our doctors and hospitals treated like the gods they think they are. Oh, in Texas the docs and hospitals are given a Notice and opportunity to disuss settlement before incurring the expenses of litigation (which in 25 years in the business, I have never seen happen) We want the defense attorneys to also make money.
Med mal attys have nothing at risk? Are you high? If you think about it, you will realize that the Plaintiff attys are the only ones who really have anything at risk in taking on a med mal case. The defense attys are paid by the hour–let that clock run! Lawyers don\’t sell widgets; they sell their time, training and expertise. But who wants to work on a project for two or three years and then at the end get paid zero? It would not make much sense for an atty to file a frivolous case, because one-third of zero is zero. Most med mal attys are very careful about the cases they take on and they make sure they have the evidence to back up the negligence. True, there are the inescapable loonies out there (pro se and otherwise) who will file stupid stuff, and true, only the most ridiculous cases will make the news, so I guess it\’s easier to blame all med mal victims and their attys for the nonsense of some. But for the vast majority of cases, when David takes on Goliath–there is plenty at risk!
Comment:
Please believe me not every victim gets justice, and without a proper legal system to keep this in line there will be more people like me. You only really know when you get there.
I felt compelled to write my story. When I see this name Cigna I still shudder, but I have somehow learned to live with it for now. It has been over 10 years now and I had subscribed to Cigna HMO for healthcare for almost 10 years. I was enrolled and treated in their No. Hollywood wholly owned clinic in California. I thought this was a wonderful company until I got sick and needed treatment. For two years Cigna abused me, and only when I went to outside doctors and paid for it did I learn I had lung cancer, and I went on to prove they knew I was ill and they were simply not going to treat me and let me die. I went to the newspapers and fought them, got treatment and thank God somehow I survived.
It is a long story. I never did get legal justice because I refused to arbitrate with these criminals, and then they asked the arbitrator to have me pay their legal fees. He refused and said everyone will pay their own legal costs. That day the Judge/Arbitrator said to me, “don’t give up, learn to integrate it into your life, you cannot make this your life, but do not give up,” and I know inside his heart broke for me.
You bet your bottom dollars these people are, make no mistake criminals, and somehow they are still making a dollar on other people’s pain. However, I am sure justice will come.
Finally and importantly, I still have the response they filed over 10 years ago, that even if they committed Fraud or a crime they could still compel Arbitration. A sad state of affairs don’t you think? If we join together we can fix this I am sure.
Court Rules for HMOs in Patient Lawsuits
By MICHAEL GRACZYK, Associated Press Writer
6:54 AM PDT, June 22, 2004
Class photo
click to enlarge
Related
– Supreme Court
Related Stories
– High Court Rebukes Bush on Car Pollution
– Court Boosts Regulators on Power Plants
– Court Rejects Appeal in Brown Case
SUGAR LAND, Texas — Leading up to her hysterectomy about five years ago, Ruby Calad thought she understood all the insurance bureaucracy involving her HMO.
\”I\’d done my homework,\” the suburban Houston woman said.
But the day after her operation, she was told by a Houston-area hospital she had to be released because her HMO, Cigna Healthcare of Texas Inc., would approve no additional expenses. She was discharged prematurely, then wound up in an emergency room a few days later, she said.
\”(It) ended up costing them more money,\” Calad, 50, recalled Monday, a few hours after learning the U.S. Supreme Court had ruled against her in a lawsuit stemming from her HMO\’s decision.
\”The court essentially looked the other way on the issue of the HMO abuse,\” she said.
The court said HMOs are shielded from lawsuits in state courts, where juries are more apt to side with victims and recommend multimillion-dollar judgments from insurance companies.
Justice Clarence Thomas, who wrote Monday\’s ruling, relied on a federal pension benefit law that predates the rise of managed care and said patients may pursue claims only in federal courts, where awards are capped at only the cost of medical services the HMO would not cover.
The ruling means patients like Calad can\’t seek hefty damage awards in court if their HMOs refuse to pay for doctor-recommended medical care. The unanimous decision rejected arguments that the threat of multimillion-dollar lawsuits keeps insurance companies honest, invalidated an important part of patient rights laws in several states and tossed a political hot potato back to Congress, where lawmakers repeatedly have tried and failed to pass national patient protections.
\”I hope this ruling breathes new life into the patients\’ bill of rights debate in Congress,\” Calad said. \”I\’m also hoping they do not just sweep this under the rug and completely forget about it.\”
The ruling, in a pair of cases filed by Calad and Juan Davila, also of Texas, affects the roughly 72 million people covered by HMOs.
The Texas cases were filed under a patients\’ rights law passed when President George W. Bush was governor. When Bush was running for president four years ago, he took credit for the law, but his administration sided with insurance carriers when the two cases reached the high court.
In their arguments to the court, lawyers for Cigna noted that Calad\’s health care plan at the time, like most other health benefit plans, \”does not promise to cover any and all health care sought or desired by beneficiaries.\”
The Supreme Court did not decide whether the plaintiffs deserved better, only whether and where they could sue.
\”As far as I know, it\’s dead,\” Calad said of her legal challenge. \”I would do it again. it was worth the fight.\”
* __
Associated Press Writer Anne Gearan in Washington contributed to this report.
——————————————————————————–
MORE NEWS
– Betty Ford recovering from surgery
– Dog biscuits sold at Wal-Mart recalled
– Angels\’ Rodriguez brushes off investigation
– Psychiatrist faces molestation charges
– British crew returns home, probe begins
Want to get
As a 4+ year U.S. Air Force police veteran of Vietnam (1965-1966, 1967-1970)I was wounded once and received better medical care than I had received as a civilian under Cigna HMO in Southern California.
One time in the 1980s I sought medical treatment for a very bad cough and went to my local Cigna HMO clinic for an x-ray. The technician took one x-ray, said it was blurred but did not take another. I asked why and he said he was only suppose to take one (1) x-ray regardless of the outcome of the film. The doctor looked at it and told me nothing was wrong. Later I went to another private doctor, had an x-ray taken, and the doctor said there was a node on my lung. Following this I informed Cigna HMO of this and was told that their doctor reported \”no problem\” with my lungs. However, they did take my co-pay. Needless to say, I changed my health insurance immediately.
It is a sad state of affairs when your health care insurance provider cares more about profit than providing good health care.
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.
Too bad the article doesn\’t cover the costs of legal expense to defeat these frivolous claims. The Med Mal crisis obviously isn\’t the awards being paid for indemnity………it\’s the unecessary litigation costs to defend. When will people wake up to the fact that only people they\’re suing are themselves? ATLA sits back and stuffs it pockets with legal fees while doctors and patients pay higher insurance premiums. We should adopt English law in this country. If the plaintiff loses, he or she gets nothing and pays the defense costs. The problem with our outdated \”contingency fee system\” is that the attorneys have nothing at risk.
Hi Bill,
It was interesting article but it didn\’t state that no malpractice had occurred.
It stated about the limited payouts that occurred but you correctedly sited that it did reflect litigation costs for those claims which did enter litigation.
One thing though, please don\’t mistake no payment, to no liability as these things do necessarily mean the same thing.
I also hope that you never have a loved one injured by a medical professional.
Good Luck..
The majority of mal-practice claims don\’t generate that much in legal fees either. Most \”claims\” are not followed up on since most of them were intiated by patients who cool down a bit from the time they see their attorney.
This article really doesn\’t spell much out about anything. Some worthless statistics that anyone can use to justify their position or opinion.
At least I know now that we incur more legal costs when we take a case to trial than if we settle out…
As an insurance broker who only sells professional liability insurance to physicians this article basically states nothing. We know that the majority of cases close without indemnity payment. Most insurance carriers spare no expense when it comes to defending their doctors. This expense however translates into higher costs for the doctors. Some companies are even going so far as to file suit against plaintiff attorneys who file frivolous claims. The Trial Lawyers Assoc. is one powerful group and legislators who benefit from their fund raising will make no changes which will truly help this situation.
County, 513 A.2d 1307 (Del. 1986).
Failure to pay workers\’ compensation benefits, standing alone, does not support federal civil rights damages claim. State v. Farrar, 7 Conn. App. 142, 508 A.2d 46 (1986).
Job applicant, injured while taking physical agility test, is not an \”employee\” and is not entitled to comp benefits. Sellers v. City of Abbeville, 458 So.2d 592 (La. App. 1985).
New York holds that worker killed while committing an on-the-job theft is still entitled to benefits. Richardson v. Fielder Roofing, Inc., 67 N.Y.2d 246, 493 N.E.2d 228 (1986).
New York disagrees with Florida and New Jersey; off-duty basketball injury should be covered — public relations benefit. Malan v. Town of Yorktown, 488 N.Y.S.2d 100 (A.D. 1985).
City liable for injuries to deputy sheriff who was assisting police officers. Winkler v. County of Westchester, 488 N.Y.S.2d 101 (1985).
Illinois law prevents dual recovery of comp benefits and disability pension payments. Sellard v. Board of Trustees of R.M. Firemen\’s Pension Fund, 478 N.E.2d 1123 (Ill.App. 1985).
Volunteer fire chief who suffered heart attack at annual ceremony entitled to benefits. Coburn v. Hewlett Fire Dept., 490 N.Y.S.2d 644 (A.D. 1985).
Volunteer firefighter\’s widow must receive death benefits; husband drowned at SCUBA class that was recommended, not required. Loper v. Cascade Twp., 352 N.W.2d 357 (Mich. App. 1984).
Uniformed officer in collision while returning home did not suffer a work-related compensable injury. Westberry v. Town of Cape Elizabeth, 492 A.2d 888 (Me. 1985).
City may not deduct workers\” comp benefits from disability pension benefits. Bannan v. City of Saginaw, 362 N.W.2d 668 (Mich. 1984).
City could not sue third party who negligently injured its employee (to recover compensation paid for injury). Barme v. Wood, City of Huntington Park, Intervener, 207 Cal.Rptr. 816, 689 P.2d 446
Make this Reference BAC, patient still above your shifty insurance State Farm / Mercury / Tenet Healthcare.
Note: Take up SCUBA, 1-13-1998 Auto / Psy.
ON YOU!
Benevolence characterizes the true goodness of the mind and spirit, the unbiased kindness to do good. It confers thought and regard for the welfare of other people, and finds expression in sympathy and kindly gentleness and compassion, with charitableness and kindness.
it\’s not an article. it\’s a press release from the justice department. ij does this all the time, though they don\’t always say so.
This is just how we like it. The medical costs incurred by injured patients will be paid by the states and the federal governments (all taxpayers); the lost earnings by Unemployment, and the the patient and their families can go on welfare; not the wrongdoer! We like our doctors and hospitals treated like the gods they think they are. Oh, in Texas the docs and hospitals are given a Notice and opportunity to disuss settlement before incurring the expenses of litigation (which in 25 years in the business, I have never seen happen) We want the defense attorneys to also make money.
Med mal attys have nothing at risk? Are you high? If you think about it, you will realize that the Plaintiff attys are the only ones who really have anything at risk in taking on a med mal case. The defense attys are paid by the hour–let that clock run! Lawyers don\’t sell widgets; they sell their time, training and expertise. But who wants to work on a project for two or three years and then at the end get paid zero? It would not make much sense for an atty to file a frivolous case, because one-third of zero is zero. Most med mal attys are very careful about the cases they take on and they make sure they have the evidence to back up the negligence. True, there are the inescapable loonies out there (pro se and otherwise) who will file stupid stuff, and true, only the most ridiculous cases will make the news, so I guess it\’s easier to blame all med mal victims and their attys for the nonsense of some. But for the vast majority of cases, when David takes on Goliath–there is plenty at risk!
Comment:
Please believe me not every victim gets justice, and without a proper legal system to keep this in line there will be more people like me. You only really know when you get there.
I felt compelled to write my story. When I see this name Cigna I still shudder, but I have somehow learned to live with it for now. It has been over 10 years now and I had subscribed to Cigna HMO for healthcare for almost 10 years. I was enrolled and treated in their No. Hollywood wholly owned clinic in California. I thought this was a wonderful company until I got sick and needed treatment. For two years Cigna abused me, and only when I went to outside doctors and paid for it did I learn I had lung cancer, and I went on to prove they knew I was ill and they were simply not going to treat me and let me die. I went to the newspapers and fought them, got treatment and thank God somehow I survived.
It is a long story. I never did get legal justice because I refused to arbitrate with these criminals, and then they asked the arbitrator to have me pay their legal fees. He refused and said everyone will pay their own legal costs. That day the Judge/Arbitrator said to me, “don’t give up, learn to integrate it into your life, you cannot make this your life, but do not give up,” and I know inside his heart broke for me.
You bet your bottom dollars these people are, make no mistake criminals, and somehow they are still making a dollar on other people’s pain. However, I am sure justice will come.
Finally and importantly, I still have the response they filed over 10 years ago, that even if they committed Fraud or a crime they could still compel Arbitration. A sad state of affairs don’t you think? If we join together we can fix this I am sure.
HMO\’s have a \’protective shield\’; until it gets pulled away and they can truly be exposed to damages, some will behave in ways they should not.
I\’m not a proponent of lawsuits, but HMO\’s are a good example of what you get when you insulate something completely from damages.
Court Rules for HMOs in Patient Lawsuits
By MICHAEL GRACZYK, Associated Press Writer
6:54 AM PDT, June 22, 2004
Class photo
click to enlarge
Related
– Supreme Court
Related Stories
– High Court Rebukes Bush on Car Pollution
– Court Boosts Regulators on Power Plants
– Court Rejects Appeal in Brown Case
SUGAR LAND, Texas — Leading up to her hysterectomy about five years ago, Ruby Calad thought she understood all the insurance bureaucracy involving her HMO.
\”I\’d done my homework,\” the suburban Houston woman said.
But the day after her operation, she was told by a Houston-area hospital she had to be released because her HMO, Cigna Healthcare of Texas Inc., would approve no additional expenses. She was discharged prematurely, then wound up in an emergency room a few days later, she said.
\”(It) ended up costing them more money,\” Calad, 50, recalled Monday, a few hours after learning the U.S. Supreme Court had ruled against her in a lawsuit stemming from her HMO\’s decision.
\”The court essentially looked the other way on the issue of the HMO abuse,\” she said.
The court said HMOs are shielded from lawsuits in state courts, where juries are more apt to side with victims and recommend multimillion-dollar judgments from insurance companies.
Justice Clarence Thomas, who wrote Monday\’s ruling, relied on a federal pension benefit law that predates the rise of managed care and said patients may pursue claims only in federal courts, where awards are capped at only the cost of medical services the HMO would not cover.
The ruling means patients like Calad can\’t seek hefty damage awards in court if their HMOs refuse to pay for doctor-recommended medical care. The unanimous decision rejected arguments that the threat of multimillion-dollar lawsuits keeps insurance companies honest, invalidated an important part of patient rights laws in several states and tossed a political hot potato back to Congress, where lawmakers repeatedly have tried and failed to pass national patient protections.
\”I hope this ruling breathes new life into the patients\’ bill of rights debate in Congress,\” Calad said. \”I\’m also hoping they do not just sweep this under the rug and completely forget about it.\”
The ruling, in a pair of cases filed by Calad and Juan Davila, also of Texas, affects the roughly 72 million people covered by HMOs.
The Texas cases were filed under a patients\’ rights law passed when President George W. Bush was governor. When Bush was running for president four years ago, he took credit for the law, but his administration sided with insurance carriers when the two cases reached the high court.
In their arguments to the court, lawyers for Cigna noted that Calad\’s health care plan at the time, like most other health benefit plans, \”does not promise to cover any and all health care sought or desired by beneficiaries.\”
The Supreme Court did not decide whether the plaintiffs deserved better, only whether and where they could sue.
\”As far as I know, it\’s dead,\” Calad said of her legal challenge. \”I would do it again. it was worth the fight.\”
* __
Associated Press Writer Anne Gearan in Washington contributed to this report.
——————————————————————————–
MORE NEWS
– Betty Ford recovering from surgery
– Dog biscuits sold at Wal-Mart recalled
– Angels\’ Rodriguez brushes off investigation
– Psychiatrist faces molestation charges
– British crew returns home, probe begins
Want to get
As a 4+ year U.S. Air Force police veteran of Vietnam (1965-1966, 1967-1970)I was wounded once and received better medical care than I had received as a civilian under Cigna HMO in Southern California.
One time in the 1980s I sought medical treatment for a very bad cough and went to my local Cigna HMO clinic for an x-ray. The technician took one x-ray, said it was blurred but did not take another. I asked why and he said he was only suppose to take one (1) x-ray regardless of the outcome of the film. The doctor looked at it and told me nothing was wrong. Later I went to another private doctor, had an x-ray taken, and the doctor said there was a node on my lung. Following this I informed Cigna HMO of this and was told that their doctor reported \”no problem\” with my lungs. However, they did take my co-pay. Needless to say, I changed my health insurance immediately.
It is a sad state of affairs when your health care insurance provider cares more about profit than providing good health care.
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.