Awhile back, David Nieporent wrote a response to a post by Eric Turkewitz on his New York Personal Injury Law Blog that was cross-posted here on Tort Deform. They were engaged in a debate over the merits of “apology laws” that allow doctors to show regret at the outcome of a procedure, but without it being used against them in a subsequent medical malpractice claim.
In his original post Eric says:
I've always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both. (link)In his response post, Nieporent says:
[T]he practical implication of [Eric’s assertion] for doctors is clear: doctors should apologize. But he doesn't seem to reflect on the implication of that for lawyers. If med-mal cases are brought based on anger over bad bedside manner rather than wrongdoing, then our med-mal system will punish bad bedside manner rather than wrongdoing. (link)Nieporent is way out in left field on this one. He is missing or attempting to distort the distinction between the existence of an arguable medical malpractice claim, and the reasons this claim is actually brought (or ever considered) by the victim or their family. Eric’s point is that bad communication is often the triggering point to begin an inquiry into litigation over an unsuccessful medical procedure. This triggering point would likely be avoided if there was better communication. However, whether or not the litigation “trigger” is pulled, is an entirely different question than whether or not malpractice has actually occurred or not.
Better bedside manner would produce one result with two ultimate effects. The result is less people even deciding to pull the “litigation trigger” and seek out the counsel of an attorney at all. The first ultimate effect is less people who have been the victim of clear medical malpractice will sue because less will even contact attorneys. The second ultimate effect is that less people who may have symptoms that appear related to malpractice, but that cannot be proven as such under a state’s given (often tort "reform" distorted) laws (or who simply have an illegitimate claim) will ever even attempt to sue.
Tort “reformers” should be able to get behind both of these ultimate outcomes since they “don't generally endorse litigation as a solution to problems.” (although many tort "reformers" change their tune when they or somebody in their family is hurt)
However, more fundamentally, Nieporent's overall narrative about litigation as the first recourse of most Americans is incorrect.
Perhaps the greatest misconception the tort “reform” movement has imbued in the American people is the idea that people are always suing people left and right whenever they are injured.
This characterization is entirely untrue. As outlined by Professors William Haltom and Michael McCann in their award winning book, Distorting the Law, most grievances in America do not end with cases even being filed.
Their “tort and civil disputing pyramid” based on data collected in the late 1970’s, demonstrates this important point.
For every 1,000 tort grievances (defined as the belief that another has wronged them) there are:
857 tort claims (defined as instances in which the party states their grievance to the other party)
201 tort disputes (defined as instances in which the party against which the claim is made disputes the claim)
116 disputes taken to lawyers (defined as one or more parties seeking counsel)
38 tort cases filed (defined as some filing in court regarding the dispute)
Thus of all these instances in which a party is aggrieved, only 3.8% ever result in the filing of lawsuits.
Moreover, of these filed, many will eventually be dropped or go immediately to settlement.
Then again, this is an older study. However, more recent studies come to similar conclusions:
(citing David A. Hyman and Charles Silver, “Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid,”59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society 3 (2002));Rand Institute for Civil Justice, Compensation for Accidental Injuries in the United States (1991).)
Then again, the specific substantive discussion of these two posts was the issue of medical malpractice, so let's look at these claims.
While between 44,000 and 98,000 die, and approximately 300,000 are injured each year from medical errors in hospitals, “eight times as many are injured as ever file a claim,” and “16 times as many are injured as ever receive compensation.”
Of course, some tort “reformers” might argue that so few bring and ultimately win claims because their claims are “frivolous,” in reality, that claim does not stand up to real scrutiny.
Let’s take the recent study by Harvard’s School of Health. It’s press release for the study titled “Study Casts Doubt on Claims That the Medical Malpractice System is Plagued By Frivolous Lawsuits” states that “[m]ost claims (72%) that did not involve error did not receive compensation.” That means that, according to the study, about a quarter of the time claimants incorrectly receive compensation. These numbers indicate that there are errors, but, as the Harvard press release states:
“Overall, the malpractice system appears to be getting it right about three quarters of the time,”…. That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.” (link)
Moreover, despite the spin of tort "reformers,” when the right outcome is not reached in medical malpractice cases, it is more likely that an injured person will go uncompensated than that an uninjured person will illegitimately get compensated. As stated by Harvard:
The 27% of cases with outcomes that didn’t match their merit included claims that went unpaid even though the injury was caused by an error (16%); claims that were paid but did not involve error (10%); and claims that were paid but did not appear to involve a treatment-related injury (0.4%). (link)
And yet, tort “reformers” dedicate millions of dollars to a public opinion campaign to convince us that people are filing lawsuits when they get a paper cut.
The reality is that the facts show that most Americans are rather forgiving of medical errors and decide not to pursue litigation. Or perhaps, instead, it is simply the case that most Americans aren’t aware that they’ve been wronged
Either way, if I were a tort “reformer,” I would come to the conclusion that it might actually be really smart to just stop discussing the issue of malpractice litigation at all.
Every time they make somebody think about medical malpractice as an issue, they also make that person more aware that they can sue when a doctor injures them.
Luckily, I’m not a tort “reformer.”