Facts matter, and, when amassed in a smart way, they can paint a powerful and accurate picture of reality, as is made clear with findings presented in the annual “Briefing Book” on medical malpractice from the Center for Justice and Democracy at New York Law School.
As the Kentucky Supreme Court recently affirmed when it slapped down an attempt in the Bluegrass state to “reform” medical malpractice lawsuits, doctors, hospitals, nursing homes, and insurers too readily embrace and spread counter-factual notions about patients who seek in the civil justice system remedies for harms they have suffered while seeking medical services.
It’s our fundamental, guaranteed right to pursue such claims, the justices affirmed — and the CJ&D experts have put together research to show that medical malpractice cases don’t happen often but are valuable in protecting the quality and safety of all patients’ care.
Rigorous studies show that the suits aren’t frivolous, they’re much fewer in number than opponents say, and the payouts — with exceptions in egregious instances — are relatively small for civil lawsuits, research highlighted by CJ&D says.
Further, scholars at Northwestern University and elsewhere are extending what the public ought to know about bad doctors and dodgy hospitals: It’s just a slice of them that harm patients, sometimes badly, and these are the practitioners hit more often with medical malpractice suits. That’s also because of failed systems, processes, and colleagues who can’t, won’t, or don’t get blow the whistle on and help get rid of rotten doctors or to fix wrongs by hospitals, Big Pharma, medical device makers, and insurers.
Intriguing studies in 2018 — summarized and indexed in the CJ&D work — also suggest that past performance can be a key indicator of present and future problems with doctors. As research highlighted by the center indicates, patients and malpractice lawyers show a willingness to carefully consider circumstances in cases, which often needn’t go to trial when more amicable solutions can be found. Medical malpractice cases may affect the sterling doc who has the one awful day, in which a patient suffers greatly. But more often the suits swirl around just a few doctors. And as jurors see repeated wrong-doing on their part, judgments against them also increase. This looks predictable.
With such valuable insights available, why, then, do doctors, medical groups, hospitals, and insurers focus on making medical malpractice suits the bogeyman and labor, instead, to police the profession and oust its worst and most injurious practitioners? The CJ&D Briefing also includes sections describing how, yet again, doctors lose licenses in one state, then move a few miles over the border and keep practicing. Hospitals protect themselves, not their patients when they discover malpractice by doctors working in their facilities. Insurers also keep mum about bad doctors, even as they pay to settle malpractice claims against them.
In 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. As they confront ever more complex, daunting choices about tests, drugs, and therapies, patients also wrestle with high levels of uncertainty and giant personal and financial risk. Too much of modern medicine, meantime, has become a harried, money-driven enterprise. 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 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.
As Kentuckians found when their lawmakers put in place so-called malpractice “reforms,” the civil justice system itself broke. Medical experts were supposed to empanel themselves to listen to and weigh whether claims were frivolous or unfounded. But doctors and others with knowledge — maybe even conflicts of interest — couldn’t make time to serve. Long waits became common, even for those who had suffered clear and demonstrable harm. When justice became so delayed, it was denied, the state’s highest court found, adding that this is unacceptable in America. One kind of civil suit can’t be targeted in this fashion and citizens can’t be denied their access to courts, counsel, and judges, the justices said. Those are facts. They matter.