There is a question I hear with some frequency, especially when I tell a prospective client that the facts of their medical treatment do not support a malpractice case, “Can’t we just file suit and then settle with them out of court?” Sadly, the answer is a clear “No.” Even when a malpractice case is strong, doctors and hospitals and their insurance companies fight them as though their lives depended on it. That response to suit by the medical providers and their insurance companies is one of the main reasons our justice system is so unfair to injured patients.
Let’s start with the fact that there is a lot of malpractice out there. Medicine is complicated and not always straightforward. It involves human beings, who are imperfect and who make mistakes. It often involves communication between people and miscommunication is common, even when the topic is not as complicated as medical care. Fortunately, most medical errors do not cause serious harm or death. Given the cost and complexity of a medical malpractice case, it does not make financial sense to sue over injuries that are less than major. The patient cannot make a large enough recovery to pay for the cost of experts, to pay the lawyer, and to have something left over for himself. Even major injuries may not support a medical malpractice case, if the patient made a fairly good recovery.
Doctors and hospitals win 85-90% of the malpractice cases that go to trial and they know it. So do their insurance companies. It makes sense for them to fight these cases hard to discourage patients and their attorneys from bringing cases that are not strong on liability and have the potential for a large jury verdict.
Their hardball tactics have had the desired effect. Experienced malpractice lawyers wont take a case they don’t think they are likely to win at trial. They cannot afford to. A case with a chance to win at trial must have strong evidence of malpractice, the clearer the better, and big damages. That is why it is ludicrous for the medical establishment to claim that lawyers are bringing lots of frivolous cases. Frivolous cases don’t win at trial and they don’t get settled by the defendants either. If I bring two or three frivolous cases in a row, I am staring at bankruptcy. For that reason, I am forced to turn down over 100 potential cases for every one I take. And many of the cases I am forced to turn down are cases that involve people who have been injured by what I can see is medical malpractice. These are people whom the system should compensate, but does not. Only the most seriously injured patients or the families of deceased patients can participate in our medical malpractice system.
Another reason doctors fight these cases hard is that there may be substantial downsides to them, even if they have plenty of insurance to cover the potential judgment. Any time a doctor settles a malpractice suit, two reports are made.
The first is to the National Practitioners’ Data Bank. The data bank is an information clearinghouse set up by Congress to keep track of malpractice claims. Settlements and judgments are reported and anytime a doctor applies for license renewal or for hospital privileges or for malpractice insurance, an inquiry is made to the data bank to review the doctor’s record. While the doctor can explain why payment was made in settlement, it is still considered a black mark on the doctor’s record. Of course, the public is not allowed access to the data as that might be embarrassing to the doctors who are reported.
The second report is made to whichever medical board is responsible for licensing the doctor. The board will review the complaint and any expert reports and decide whether to open a full-fledged investigation. No one likes to be investigated by the medical board.
Lawyers are to blame here as well. The lawyers who defend malpractice cases are very talented, but they don’t get paid if they don’t work. So when a complaint is filed and served on a health care provider, it gets sent to a malpractice defense lawyer who starts the meter running and who almost always needs to do a substantial amount of work before she or he is able provide the defendant with an opinion about liability and damages. That work by the defense attorney translates into substantial expense for the patient and the patient’s attorney. Another barrier to justice.
Our malpractice justice system is broken. It does a poor job of recognizing patients who have been injured by medical mistakes and compensating them fairly. Most people injured by medical mistakes do not get compensated at all. Those who do get compensated have usually had to hire a lawyer and fight like hell to get paid. We should be able to do better.
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