An increasing number of medical malpractice victims throughout the United States are finding it increasingly more difficult to find medical malpractice lawyers in their state who are willing to represent them in a medical malpractice claim. Why is this so, and what can these medical malpractice victims do?
The number one reason why medical malpractice victims cannot find medical malpractice attorneys to represent them is because of so-called medical malpractice tort reforms that have been enacted over the last forty years in an increasing number of states that raised impenetrable obstacles in the path of those injured by medical negligence, making it unfairly difficult, and prohibitively expensive, for medical malpractice lawyers to seek justice for their clients.
Medical malpractice “reforms” include caps (limits) on noneconomic damages (such as pain, suffering, mental anguish, and scarring) enacted in an increasing number of states that affect the most seriously harmed medical malpractice victims the most. Other medical malpractice reforms include: severe restrictions on who may act as medical malpractice experts that limit the availability of experts to assist medical malpractice victims and substantially increase the costs associated with acquiring necessary medical expert testimony; limits on attorney fees for medical malpractice victims (but no limits on attorney fees charged to defend negligent medical providers) that make it difficult for medical malpractice lawyers to accept smaller medical malpractice cases; and, the imposition of pre-suit medical review panels that have made it exponentially more expensive and time-consuming for medical malpractice lawyers to obtain compensation for their clients.
How can a medical malpractice lawyer justify to himself, his support staff, and his family that rely on his ability to put food on their tables and a roof over their heads to invest both his professional time and his own money in prosecuting valid but smaller medical malpractice claims when both his time and his ability to finance litigation expenses are limited and the likelihood of obtaining fair and adequate compensation for both his client and himself is diminished because of arbitrary and irrational medical malpractice reforms?
How Did We Get Here?
The stakeholders in the national healthcare industry (hospitals, physicians, medical clinics, other health care providers, and their medical malpractice insurers) have a common goal when its comes to taking financial responsibility for their failings that lead to avoidable harm suffered by their patients: to avoid any financial responsibility and if that fails, to limit medical malpractice payouts to victims.
What has been most effective in the healthcare industry’s fear mongering playbook that has resulted in special protections for their members at the expense of their victims?
The healthcare industry’s political efforts have been successful in cajoling state legislators, primed by the healthcare industry’s high-paid lobbyists, into blindly accepting without supporting facts that: (1) medical malpractice victims are filing frivolous medical malpractice claims; (2) that frivolous medical malpractice claims are causing medical malpractice insurance premiums to rise; (3) that increasing medical malpractice insurance rates are causing physicians to close the doors to their medical practices, leaving patients without medical care; (4) that states with higher medical malpractice insurance rates are losing physicians to states in which medical malpractice insurance rates are lower; and, (5) that neighboring states that are willing and able to impose medical malpractice reforms limiting personal responsibility for harms caused by medical negligence are causing a massive migration of physicians, thereby threatening a shortage of medical care in those states that fail to kowtow to the healthcare industry’s medical malpractice reform demands.
The Fallacy Of Medical Malpractice Tort Reform Is In The Details
With regard to (1) above, no medical malpractice lawyer would knowingly file a “frivolous” medical malpractice lawsuit on behalf of a client because doing so would cost him his time (which he cannot recover) and his own money that he advanced for litigation expenses (which he also cannot recover), and he would also subject himself to severe and potentially career-ending sanctions if he knowingly filed a frivolous lawsuit. (Sometimes a medical malpractice claim appears both viable and valid as a result of an initial investigation but during the intense discovery process that is only available after a medical malpractice claim is formally filed, a different conclusion may be reached, which often results in the medical malpractice claim being voluntarily dismissed). If health care providers were more honest and forthcoming with their patients about an unexpected harmful result of medical treatment at the time of the injury, then many medical malpractice claims may be avoided.
With regard to (2), studies have shown that medical malpractice insurance rates are mainly based on market factors and are not significantly impacted by medical malpractice payouts. And when medical malpractice payments are artificially reduced due to medical malpractice reforms, medical malpractice insurance rates are often not reduced in response – medical malpractice insurance companies have enjoyed record-breaking profits year-after year. A recent study concluded: “These data clearly show that periodic liability insurance crises have always been driven by the insurance cycle and not a tort law cost “explosion” as insurance industry and organized medicine lobbyists have claimed. Laws that restrict the rights of injured patients to go to court do not produce lower insurance premiums for doctors. To lower rates or to prevent future liability insurance crises, lawmakers should focus instead on controlling the power and the abuses of the insurance industry.” Source
The average profit margin for the top 10 medical malpractice insurance companies was two times as high as the average profit margin of the 50 most profitable Fortune 500 companies (only one Fortune 500 company had a profit margin that matched the top 10 medical malpractice insurance companies).
The Doctors Company, which is one of the nation’s largest medical malpractice insurance companies that keeps swallowing up smaller medical malpractice insurance companies, reported that it had a 50% profit margin in 2006. However, in 2010, when The Doctors Company reviewed its actual losses during the prior four year period, The Doctors Company determined that its original estimate of losses in the amount of $286 million was too high and lowered its estimated losses by 34%, to $188 million. Therefore, for 2006, The Doctors Company did not have a profit margin of 50% but rather a profit margin of almost 70%. Source
The Doctors Company recently declared a 2017 premium dividend of approximately $26 million; The Doctors Company has paid out nearly $400 million in dividends since 1976. Source
With regard to (3), there is little, if any, evidence that physicians are closing their medical practices and leaving the medical profession due to medical malpractice insurance rates – when was the last time a physician closed his medical practice and became a plumber? Health insurance reimbursement rates, costs of running a medical office, and quality of life issues (such as long hours and stress) are more often the root causes of doctors retiring or starting new careers.
The Medscape Physician Compensation Report 2017 reported that the average annual full-time compensation for physicians in the United States for patient care is $294,000, with incomes steadily increasing over the last seven years. The Report stated that 77% of physicians stated that they would choose medicine again if they had to make a choice again.
With regard to (4), a study of the effects of Texas’ medical malpractice tort reforms found “Physician supply appears to be primarily driven by factors other than liability risk, including population trends, location of the physician’s residency, job opportunities within the physician’s specialty, lifestyle choices, and demand for medical services. For some physicians, malpractice insurance rates and the risk of being sued may be important factors. But for many physicians, other factors matter more.” Source
With regard to (5), studies have shown that states with direct medical malpractice reforms saw physician supply grow 2.4% more than in states that did not have reforms, which meant an additional 5 physicians per 100,000 population three years after reforms were enacted – not exactly hard evidence of physicians migrating in mass from states with no medical malpractice reforms to states with medical malpractice reforms.
A 2012 study of Texas’ medical malpractice reforms that were enacted in 2003 found: “Before Texas adopted tort reform in 2003, proponents claimed that physicians were deserting Texas in droves. After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim. Physician supply was not measurably stunted prior to reform, and it did not measurably improve after reform.” Source
Medical Malpractice Reforms Harm Patient Safety
Less financial responsibility for one’s professional failures is a disincentive to remaining vigilant in the quality of services provided and does not improve, promote, or provide patient safety. It does not take much thoughtful analysis to conclude that if the financial incentive to provide appropriate medical care is reduced, then the quality of medical care will suffer (i.e., by limiting personal responsibility for personal failures, professionals are disinclined to seek professional growth and improvement in the services they provide).
A recent study found that medical malpractice caps on noneconomic damages have reduced the risk of medical malpractice litigation in those states, which has led to higher rates of preventable adverse patient safety events in hospitals. The study’s authors concluded, “We find evidence that reduced risk of med mal litigation, due to state adoption of damage caps, leads to higher rates of preventable adverse patient safety events in hospitals. Our study is the first, either for medical malpractice or indeed, in any area of personal injury liability, to find strong evidence consistent with classic tort law deterrence theory – in which liability for harm induces greater care and relaxing liability leads to less care. The drop in care quality occurs gradually over a number of years following adoption of damage caps.” Source
Another study from 2014 found that “when a state’s neighbor passes a cap on noneconomic damages, both the physician-to-population ratio and the malpractice rate fall. This suggests that physicians who relocate in response to noneconomic damages caps are more likely to commit malpractice.” Source
What Can Medical Malpractice Victims Do?
Despite the decreasing odds of finding a medical malpractice lawyer to represent you when you or a family member have suffered harm as a result of medical negligence, you should promptly attempt to find a medical malpractice attorney in your U.S. state who may investigate your medical malpractice claim for you and represent you or your family member in a medical malpractice case, if appropriate.
Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.
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