Restoring Legal Rights to Victims of Medical Malpractice

In the 20 years between 1992 and 2012, medical malpractice claims in the U.S. decreased by 57%, and not because the quality of medical care improved. It was because the legal system made the pursuit of parties who committed medical errors more difficult.

So wrote attorney Shanin Specter in a recent commentary in the Philadelphia Inquirer. He called this travesty of justice a “silent crisis” because so many victims of medical negligence go not only uncompensated but unheard for the harms they suffered.

He deplored this state of affairs in his state, Pennsylvania, which has tallied 43.3% fewer medical malpractice cases in the last 10 years, resulting in an almost 50% decrease in payouts by the state’s insurance department. Good for that department’s budget, bad for the suffering patients who deserved to be compensated.

And Pennsylvania’s numbers are better than the national average, because that state does not impose a cap on judgments for pain and suffering.

Readers of this blog know that such caps, which limit how much money a harmed patient can recover in court regardless of the nature or severity of the medical mistake, not only deprive people of their rightful redress, but chill the whole process. Attorneys can’t afford to take cases they believe they have little chance of winning, or in which the judgments would be too small. Invariably, medical malpractice attorneys work on spec – that is, clients don’t pay for their services unless and until they are awarded damages in court. Then their advocates get a cut.

Another wave of so-called “reform” is the change in legal standards that virtually immunize some doctors, notably those working in emergency rooms, from any lawsuit unless the patient can prove something close to intentional harm and not mere carelessness. As we noted recently in this blog, new research has found that the ostensible purpose for such legal changes, to reduce so-called “defensive medicine,” doesn’t work. Medical costs are the same; only injured patients are hurt when they get no legal redress for their preventable harms.

Medical malpractice cases have declined, Specter noted, by more than half even in states that don’t have caps. The number of paid claims per physician career show such a steep decline, he wrote, that “the average physician will never be involved in a medical-malpractice claim that results in the payment of money.”

A telling consequence of this reality is that, according to Specter, malpractice insurance rates have fallen nationally about 20% since 2006.

The quality of medical care in some areas has improved, Specter allowed, but “studies continue to show very high error rates, with no evidence of improvement.” (See our blog, “Protecting Yourself from the Thousand-a-Day Toll of Medical Error.”)

The changes in law that deprive harmed patients of their rights not only have lowered the cost of insurance coverage for health-care providers, but have reduced the amount people can recover for what they lost in future earnings potential, for periodic payments of future medical and personal care expenses, and have limited where plaintiffs may prosecute their complaints. “The cumulative effect of these changes,” Specter wrote, “is to deter roughly half of lawsuits and prevent roughly half of the payments for claims.”

“Every action,” he pointed out, “has an equal and opposite reaction.” And as you might imagine, it’s not to your benefit.

Between 2009 and 2013, plaintiffs won only 16 in 146 jury trials in four suburban counties in Pennsylvania.

“Given these odds,” he noted, “and the reduced value of the claims, it’s no wonder that law firms report that they accept only about 1% of medical-malpractice inquiries for representation.”

Here’s what Specter recommends to remedy the wrong:

1. “Malpractice victims and defendants should play by the same rules as other tort victims and defendants.” (A tort is a civil wrong that can be redressed by awarding damages.)

Medical-malpractice cases, Specter said, should be allowed to be filed in any county where at least one of the defendants regularly conducts business, as is allowed in Pennsylvania for motor vehicle accident cases, premises liability cases, contractual disputes and nearly all other civil matters. Including malpractice cases in this club would avoid abuse of the rules, such as transferring cases to a place so inconvenient as to dissuade people from pursuing their claims.

2. “[T]here is a significant issue about whether it is fair to pay less to victims of medical malpractice than to victims of other torts. Only the medical profession enjoys special rules with respect to reduction to present worth of lost earning capacity and periodic payments of future medical and personal care expenses.”

Spectoe suggested such caps violate the constitutional guarantee of equal protection, and that the special-venue rules violate equal protection.

In conclusion, Specter wrote, “The pendulum has swung too far in favor of health-care providers and their insurers and against medical-malpractice victims. It’s time to move toward the center.”

In our opinion, it’s long past that time. People have been hurt by the hand of others, and they shouldn’t have to fight for fairness.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
Washingtonian Top Lawyer 2011
Avvo Rating 10.0 Superb Top Attorney Best Lawyers Firm
Contact Information