Don’t fall for malpractice malarkey: A briefing details medicine’s many harms

cjdlogoCold, hard facts — not hunches, arguments, or theories — matter most when tough health care decisions must be made. Americans have been reminded of this by painful headlines on the opioid and overdose crisis, the rise of lung injuries and deaths due to vaping, and, yes, now the rapid spread of a new coronavirus. Doctors, hospitals, insurers, Big Pharma, and other major parties in the U.S. health care system aren’t always as candid as they need to be, especially in disclosing how they harm and even kill patients.

That’s a truth (with a small “t”) that readers can discover quickly in the Center for Justice and Democracy’s latest edition of its annual “Briefing Book: Medical Malpractice by the Numbers.” The center, at New York Law School, provides evidence about a field that has become the bogeyman for politicians, policy makers, and medical practitioners eager to hide egregious errors with extreme counter factual assertions.

Malpractice cases in the civil justice system provide important insights and checks on how doctors and hospitals care for the sick, injured, and vulnerable.

Emergency room staff, for example, may be on many minds with the pandemic causing high anxiety. Many of the individuals who labor in ERs do splendid work, saving lives in dramatic fashion. But malpractice lawsuits also show that ER errors also cause substantial harm, for example, with misdiagnosis, or problems with care or medications. As the briefing book substantiates, “Of medical malpractice claims caused by emergency room errors, more than 33% resulted in death.”

That’s based on a study the document points to, with researchers finding that, “After analyzing over 1,300 closed medical malpractice claims filed against hospitals between 2014 and 2018 over emergency department care, the insurance provider [Coverys] found that 61% of claims involved serious injury, with more than one-third resulting in death.”

Preventable human error results in jaw-dropping numbers of bad surgical outcomes, the CJ&D reference work finds, citing a recent published work:

“According to a 2019 JAMA study, ‘There are approximately 17 million surgical procedures performed in the United States each year….  If the adverse outcome rate is about 5%, and half of those are due to human error, as seen in our cohort and reported in other studies, it would mean that about 400,000 adverse outcomes could be prevented each year.’”

The center’s annual aggregation of evidence, based on reliable researchers’ rigorous scrutiny of problem areas of the U.S. health care system, catalogs the counter arguments to inaccurate claims by doctors, hospitals, insurers, and politicians that malpractice is a problem needing a fix in the U.S. civil justice system. Medical malpractice cases do not clog up the system with frivolous claims but act, instead, as a vital way to highlight wrongs and provide a way to get them fixed.

As the briefing explains, based on the latest (2018) data from the National Center for State Courts: “Medical malpractice cases represented only 0.15% of state civil caseloads in 2018. This rate is consistent with NCSC data from the previous six years.  Medical malpractice cases represented only 4% percent of state tort caseloads in 2018. This rate is consistent with NCSC data from the previous six years.”

Citing data from CRICO, a Harvard-associated medical professional liability organization, the briefing book reported this about malpractice cases:

“Overall [malpractice] case frequency dropped 27% from 2007-2016, with an especially compelling trend for obstetricians-gynecologists. Fewer cases are being asserted relative to the physician population. The 2016 rate, 3.7 cases per 100 physicians, reflects a steady downward trend. For ob-gyns (whose rate is historically higher than the average for all MDs), the risk of having [a malpractice] case filed against them dropped 44% from 2007–2016.”

When it comes to the complicated issue of malpractice, doctors themselves may be victimized by profit-seeking insurers, say Emily Gottlieb and Joanne Doroshow, the briefing book’s authors. Gottlieb is CJ&D’s deputy director for law and policy, while Doroshow is executive director of the self-described “only national consumer organization in the country exclusively dedicated to protecting our civil justice system.”

They also reported, as part of the briefing book’s promotion, that:

“According to the new study from Consumer Federation of America and Center for Justice & Democracy, How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation, ‘New evidence shows clearly that doctors were price-gouged during the last hard market (2002 to 2005). Doctors paid increasingly high premiums while paid claims actually dropped. Medical malpractice insurers were misrepresenting their actual losses by an incredible annual average of 33%.’”

n my practice, I see not only the harms that patients suffer while seeking medical services, but also their struggles to access and afford safe, efficient, and excellent medical care. This has become an ordeal due to the skyrocketing complexity, uncertainty, and cost of therapies and prescription drugs, too many of which turn out to be dangerous drugs.

How do patients make their way through the health care thicket, even as modern medicine becomes ever-more obsessed, harried, and money-driven? Doctors and hospitals — abetted by free-flowing cash from insurers, Big Pharma, and medical device makers, to name a few negative actors — plunge ahead, building profits, and telling patients, simply, trust us. It’s the easier way.

Rather than devoting the time to the heavy lift of staying current, doctors and hospitals can blame medical malpractice suits for purportedly “defensive” over testing and over treatment. Rather than taking even a second to see that malpractice insurance rates aren’t skyrocketing and that companies offering such policies are making big money, doctors quake at the unlikely prospect they’ll lack coverage and attack medical malpractice suits as a cause of unrealized problems. Rather than taking the time to stop unacceptable colleagues, processes, and practices, doctors and hospitals will work with insurers and their lobbyists to launch endless waves of “tort reform” targeting medical malpractice.

There’s much to praise about medical malpractice suits, and the evidence shows this — if patients, focused on crucial matters like cost, safety, and quality, will keep their minds and eyes open to it. Works like the briefing book can help and its authors and the center discover kudos for making valuable, factual information more available to the public.

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