Sources: David A. Hyman, MD, JD ; and Charles Silver, JD; CHEST 2013; 143(1):222–227
Take it with a grain of salt as it comes from a physician-lawyer and a lawyer, but strongly consider a well-researched article published in a peer reviewed medical journal which seeks to dispel the 5 Major myths that are consistently brought up by advocates for tort reform.
Myth 1: Malpractice Crises Are Caused by Spikes in Malpractice Litigation (ie, Sudden Rises in Payouts or Claim Frequency)
So-called “runaway” jury verdicts are rare and payment on them rarer still. Using data from State and Federal databases, including the National Practioner Databank, the authors determined that the frequency of medical malpractice claims and medical malpractice payments on malpractice claims were either stable or declining in the years preceding the “medical malpractice crisis” 1999 to 2000. The vast majority of patients who have bad medical outcomes do not retain a lawyer and do not ever file a medical malpractice lawsuit.
Myth 2: The Tort System Delivers Jackpot Justice
Again, most medical malpractice cases are settled with less than 5% of medical malpractice cases going to trial. And the doctors tend to win, at least 75% of the time. The big verdicts get publicity because, well they are big verdicts. But the fact is that big verdicts aren’t typically paid verdicts. Appeals almost always follow and such cases, if not retried, are settled for substantially less money than the original reported verdict. Settlements are almost always on the condition of non-disclosure agreements and therefore these do not get published with the detail and names that the original sensational news item will.
Myth 3: Physicians Are One Malpractice Verdict Away From Bankruptcy
Any verdict, blockbuster or otherwise, that exceeds the limits of a provider’s insurance coverage (typically $500,000 to $1 million) is very unlikely to be paid. It certainly would be difficult if not impossible in some circumstances to collect a verdict directly from a doctor. Out-of-pocket payments by physicians are extraordinarily rare. In sum, physicians have effectively no personal exposure on malpractice claims (other than the obvious and unavoidable side effects of litigation, eg, the emotional and time-related costs of being deposed and the surcharges from their insurance company).
Myth 4: Physicians Move in Large Numbers to States That Adopt Damages Caps
The “we’re losing our doctors” cry has fallen on deaf ears. Your doctors are still here, for the most part. It is true that doctors are electing not to go into higher risk professions (obstetrics, surgery) and that this may be a response to medical malpractice claims but babies continue to be delivered at hospitals both with and without incident. According to the authors’ extensive research, those patients who suffered grave and permanent injuries (including death) received a mean payout of only $1.25 million and a median payout of about $1 million. Not the kind of thing that causes doctors to leave en mas
Myth 5: Tort Reform Will Lower Health-care Spending Dramatically
The direct costs of medical malpractice claims (including the cost of malpractice awards and settlements and all costs associated with defending against such claims, including the administrative costs of medical malpractice insurers is relatively modest. There is broad agreement that the direct costs of the malpractice system are on the order of 2% of health-care spending. Studies, commissioned by the Federal Government suggest that a cap on non-economic damages would reduce Medicare spending by a statistically insigniﬁcant 1.6%.
Damages caps do little to improve the malpractice system. Although they can dramatically reduce claims frequency, payouts per claim, and insurance premiums, they do not make health-care safer, reduce health-care spending, compensate those who are negligently injured, or make the liability system work better. The best reforms are patient safety initiatives that reduce the frequency and severity of medical mistakes. Those tend to come from medical malpractice lawsuits.
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