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The Straight Truth about Medical Malpractice

Big business, insurance companies, physicians and hospitals spend millions to convince you that lawyers and their frivolous lawsuits have to be stopped. The answer, according to this conglomerate of business and insurance companies, will be to stop lawyers by creating new laws that limit the rights of injury victims.  A cap on non-economic damages in medical malpractice cases will be top on their agenda.

Through all of the rhetoric, it’s sometimes hard to tell who’s telling the truth.  The data is distorted by both sides and hyperbole is tossed around, so it’s understandable that you don’t know who you can trust.  I don’t profess to have all of the answers, but a story about a 14-year old girl that might shed some light on the debate.

How Lawsuits Make a Difference

On October 31, 1998, a baby was born in Ulster County with cerebral palsy.  The baby wasn’t really born since she was delivered with no heartbeat, she wasn’t breathing and she was pale and purple. After seven minutes of chest compressions, Taudrianna (known affectionately as “Ta-Ta”) was revived and began breathing.  Tragically, it quickly became apparent that Ta-Ta had profound physical deficits and brain damage caused by the lack of oxygen in the hours before her delivery while her mother was at the hospital.

The doctor and nurses at the hospital ignored the classic signs of fetal distress on the fetal heart strips showing that Ta-Ta was not getting enough oxygen.  The nurses blamed the obstetrician and the obstetrician blamed the nurses, but the end result was a profoundly disabled baby.

During the lawsuit, it was discovered that the obstetrician had had his medical license suspended by the New York State Department of Health for “gross negligence on more than one occasion” and yet, he continued to practice at the hospital with impunity. The hospital did not oversee the physician or limit his ability to practice medicine despite the Department of Health’s order that the physician be supervised by another physician.

Today, Ta-Ta, 14 years old, spends her time as a prisoner in a wheelchair. Ta-Ta can’t read or write and she can’t speak in any meaningful way. Ta-Ta’s mother just hopes that Ta-Ta knows who she is and understands how much she is loved.  There is no consolation for Ta-Ta’s mother or her five siblings.

But today, things could be much worse.  Ta-Ta receives the best medical care, therapies and help from top development specialists through a Supplemental Needs Trust that was funded through the settlement of the malpractice lawsuit.  Ta-Ta gets everything that she needs and when her mother can’t take care of her, the Supplemental Needs Trust will provide funding for medical care that will last Ta-Ta’s life.

Does medical malpractice law work?  I’ll let you decide, Mr. Future President…or perhaps you should start by asking the mother of a severely disabled 14-year old girl in upstate New York.

The Facts don’t lie

Before we jump to any conclusions about whether malpractice lawsuits are good for society based on a single case, let’s take a look at some statistics about medical malpractice law in New York (provided by our friendly Office of Court of Administration).

There are roughly 4,000 medical malpractice lawsuits filed every year in New York with about 60 percent of the cases in New York City.   In New York City, 126 medical malpractice cases were tried to verdict in 2011 and 90% of the cases settled.

Of all medical malpractice cases filed in New York, 7 percent proceed to verdict.  Of the cases tried to verdict, 25 percent resulted in plaintiffs’ verdicts, slightly above the national average of 23 percent plaintiffs’ verdicts for medical malpractice cases.

In 2011, New York had 1,379 paid medical malpractice claims with payments averaging $454,726 per claim, which is above the national average payment of $334,559.  In 2011, the average age of a medical malpractice case at the time of settlement was 1,119 days (a little more than three years) statewide and 1,179 days for courts in New York City.

What do these numbers mean?  First, doctors and hospitals do not settle malpractice lawsuits that have no merit.  If we assume that the malpractice cases that settled had merit (remember, negligence and proximate cause), then the vast number of malpractice lawsuits were not frivolous.

Second, even if we assume that only 25% of the cases resulting in a plaintiffs’ verdict at trial had merit (the number is likely much higher, but work with me here), the percentage of meritorious malpractice cases is ever higher than what is reflected by the high number of malpractice cases that are settled.

Now, even we assume that the cases resulting in defense verdicts had no merit (and I’d bet that the majority had merit), the number of frivolous lawsuits in New York in 2011 is less than 100. Okay, let’s get this straight.  With over 4,000 lawsuits filed in New York in 2011, we can only identify less than 100 malpractice cases that might not have merit? (I emphasize “might” because I’ve lost my share of trials where the plaintiff’s case has merit).

As if this isn’t enough…

Medical Liability Mutual Insurance Company, the dominant liability insurance carrier of hospitals and physicians in New York, had a record $1.2 billion surplus last year and the number of malpractice cases has gone down in every successive year since 2007.  Malpractice costs have been rising more slowly than overall medical inflation in recent years.  You didn’t read this wrong. The number of lawsuits is going down, MLMIC enjoyed its best year in 2011 and the costs of malpractice lawsuits are in check.

Okay, great, you say, but what about all of the talk about physicians leaving the profession? Today, New York has the fourth most doctors per resident of any state. So, let’s get this straight: MLMIC is setting billion-dollar plus records for surplus, malpractice lawsuits are decreasing, malpractice costs are stable and doctors are moving to New York. What we missing here?

Does this sound like runaway juries in New York’s courtrooms?

Far from it.  But what is the public perception about medical malpractice? That the “lawyers” are bringing a bunch of bogus lawsuits based on junk science…yada, yada, yada.

The tort reform politicians (and yes, even some Democrats) shout that the trial lawyers “must be stopped”, but few of them take the time to examine the facts about malpractice law. If they did, they would learn what trial lawyers in New York already know: the truth about frivolous lawsuits does not come close to matching the reality.

That’s why the rhetoric of tort reform politicians is so damn frustrating—it’s a lie.

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