Justinian Lane

What medical malpractice crisis?

The number of payments is dramatically down, and so is the amount of payments.  

Nationwide, the number of payments physicians made for malpractice claims fell to 11,037 last year -- the lowest figure since the National Practitioner Data Bank began tracking data in 1990. Adjusted for inflation, the total $3.6 billion they paid was the second-lowest sum on record.

Source: Medical lawsuits radically declining » The Commercial Appeal

You know what question no one has answered?  How many malpractice lawsuits should there be?  “Reformers” argue tirelessly that there are too many, but they never tell us what the sweet spot is.

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Posted at 6:22 PM, Nov 02, 2009 in Medical Malpractice
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The article mentions that some of the decrease is due to the necessity of having an expert attest that there is some question of malpractice or deviation from standard of care. The example they use is Tennessee where this mandate has decreased the number of medmal cases that are filed. They also mention the reforms in Mississippi.

So this article seems to show that one type of reform has had an effect of decreasing the crisis. There are still far more cases filed than those that result in any payment to the claimant. These cases all cost the defense however.

The other factor that is not mentioned is a continued aggessive stance of physicians against being sued. The classic is that we are over documenting, over testing and avoiding cases that could result in suits. I know that many will argue this but I would like those who disagree with the statement to spend one night in the ED. Anyway, we are all playing aggressive defense instead of playing offense and helping more patients. My best example is how much time nurses and doctors have to spend doing paperwork instead of with the patient. As all the medmal insruance companies state, if it is not documented, it didnt happen.

Posted by: throckmorton | November 7, 2009 8:43 AM

No matter what type of lawsuit we talk about (or even criminal prosecutions) there will be some percentage of lawsuits where the plaintiff (or prosecutor) loses. That's unavoidable. Being wrongfully sued is a risk each and every one of us is subject to.

Something I've always found interesting: Many assume that jurors lack the intelligence to decide complicated malpractice lawsuits, and imply (or openly state) that many verdicts against doctors are wrong. Yet those same individuals assume that if a jury finds in favor of the doctor then that jury got it right.

Posted by: Justinian Lane | November 7, 2009 5:51 PM

Just out of curiosity, what should be the batting average for medmal cases?

Posted by: throckmorton | November 7, 2009 6:44 PM

I don't think there's a good answer to that question because no two medmal cases are the same.

I would say that plaintiffs should win 95% or greater of cases where the underlying allegation is the doctor operated on the wrong site or the wrong patient. The standard of care there is pretty clear and I don't think that it's over the head of the average juror.

I'd also say it should be over 70% if the allegation is that the doctor left some piece of surgical equipment inside the patient. I give more leeway here because I understand that the left-behind equipment may not be the cause of the patient's injury.

I have no idea what the rate should be for a more complicated procedure, or a procedure where there isn't necessarily an accepted standard of care.

What are your thoughts?

Posted by: Justinian Lane | November 8, 2009 11:19 AM

Our family never thought we'd ever be in a position where we wanted to sue for malpractice but that changed recently. My sister went by ambulance to an ER with a classic early symptom of stroke - a numb limb - and a history of prior stroke. This hospital has a renowned stroke center and her doctor is the director. Further, their records are computerized and her history could have been accessed. She was taken off the gurney and given a chair in the waiting room...for four hours. This was the window of time where the clot busting drug could have been administered. While waiting to be seen she suffered a stroke, both carotid arteries closed up and she ended up paralyzed and on a ventilator. She didn't die,which surprised the doctors. She's in re-hab now and her life is forever changed.

Posted by: Kamila | December 2, 2009 3:17 PM