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The Right Or Wrong About Malpractice
by Edward Knox
We live in an imperfect society. Often times we place our trust in the hands of a medical provider, a hospital, or even an attorney. We find that the trust that we place is abared either by negligence or fraud. Our system in the law provides a way that a person trusting his care or his affairs to another, has legal redress. It’s a sound and fair principle!
Because healthcare insurance has risen, a huge cry has gone out to set caps on so called non-economic damages that may be awarded for pain and suffering on malpractice claims. The classic number is $250,000.00. The issue is however, whether the rise and cost of healthcare can be attributable solely to malpractice suits or more specifically the amount of the awards.
The Wall Street Journal recently published an article stating that 57% of all malpractice trials involve some sort of permanent injury to the Plaintiff and 33% of the trials involve a death. In 2001, a study was held that reported that the Plaintiffs who are the victims, win awards only 27% of the time. This same statistic has been true for the last decade. Only 4% of these awards represent payments as the result of jury verdicts, resulting in many of the cases being settled in advance of an actual trial.
The facts are that only 2% of healthcare spending was accounted for by malpractice costs and the average payment for damages on behalf of negligent physicians in malpractice cases was $150,000.00
In some instances there have been what we might call excessive verdicts but in almost every case they are either reduced by the Judge or settled for substantially less than the amount of the reward.
In many cases, insurance carriers have taken a “roll of the dice” approach to let a jury decide the issues or merits of the case. In most instances, the dice turns up favorable for the healthcare providers and their insurance carriers.
In most instances, a doctor has a right to approve any settlement with the insurance company before a case is settled. The doctors are reluctant to settle because their name goes on a national list of doctors who have been sued with affirmative judgments. The insurance companies are quick to “roll the dice” because they know that the victims usually do not win or certainly do not exceed the offer made and accordingly they place the victim in the extenuating circumstances of having to go through a full trial.
In North Carolina, before any action can be filed for a malpractice case against a healthcare facility or a doctor, Rule 9J of the North Carolina Rules of Procedure requires that you have a doctor willing to testify as to the negligence of the offending doctor or hospital. This precludes many suits and an opportunity for many people to have even a jury trial to decide what is fair. Insurance carriers cite “runaway verdicts” in the millions of dollars stating that the rates of the doctors liability insurance are increasing due to these few cases. The truth of the matter is that only a minority of actual settlements are publicized because they insist upon non-jury verdicts confidential.
In an article in Readers Digest by Michael J. Berens for the Chicago Tribune, it suggested that dirty hospitals kill 75,000 people a year and the Wall Street Journal in a recent article by Tommy Tomlinson in the Charlotte Observer depicting that 100,000 Americans die each year from a result to preventable errors in hospitals.
The most common mistake in negligence actions today, is patients who receive incorrect doses of various types of medications according to the Healthcare Research and Quality Agency, (AHRQ). Other common medical errors include delayed or faulty diagnoses, equipment failure, surgery on the wrong limb or organ, objects left inside a patient and even mistaken patient identities. All of these are preventable.
One of the more highly publicized recent cases is that of little Jessica Santillan who suffered from a serious ailment requiring both a heart and lung transplant. The money was raised through Jessica’s Hope Chest for the operation. Shortly after the surgery she died for the simple reason that the hospital, which is one of the finest in the country, gave her blood that was incompatible with Jessica’s blood type.
The issue of a cap for pain and suffering to $250,000.00 is grossly unfair. Most hospitals and doctors are committed to providing the very finest care possible. However, it is those few doctors, or in legal matters, few lawyers that cause the problems. Mistakes are made and to simply limit the amount of monies that can be awarded for pain and suffering is not the answer.
The insurance companies have spent millions of dollars attempting to sell to the public on the premise that medical malpractice cases are the real cost of inflation for healthcare and the rise in liability insurance for medical providers. The truth is that the inflationary economy has played an important role in these increases.
There needs to be a system of “checks and balances” for the few doctors whose care falls beneath the standard of care of their communities. The state Medical Board and the Bar Association need to stand up and play a stronger role in the review of cases. There needs to be a monitoring of doctors who have had claims brought against them. Some states are currently making public the names of doctors who have been in violation of providing treatment below that standard of care. That is a beginning but not the final answer.
I personally see every year, cases where if a doctor would simply apologize to a patient or the patient’s family, and give an explanation for the error, many of the suits would go away. But the doctors on the advice of their insurance companies’ do not do that for fear that it might be admissible against them. I have personally tried this approach but the insurance companies always reject such a conference with fears that the conference could later be admissible in a court of law, even thought documents could be prepared to guaranty the confidentiality of the meeting similar to settlement agreements being held confidential for the benefit of doctors.
In my more than 40 years of legal practice, I have reviewed on average 30 – 50 cases per year. I file very few lawsuits in comparison to the number of cases I bring due to the fact that cases that are brought to trial need to be meritorious cases. If the laws are changing to weed out non-meritorious cases being brought to our judicial system, that why can’t the Medical Board take actions to weed out the bad doctors and medical providers.
Tort Reform is not the answer. The answer is to make medical personnel accountable for their actions.
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