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Five Myths About Medical Negligence

Posted by Jane Akre
Wednesday, November 04, 2009 4:18 PM EST
Category: Major Medical
Tags: Tort Reform, Georgia, AAJ, U.S. Chamber of Commerce, Jury Caps, Paiin and Suffering

Five myths about medical malpractice include the claim there are too many frivolous lawsuits.


IMAGE SOURCE: ©iStockphoto/ Doctor’s visit/ author: Lilliday


Friday Debate

As the House heads into a floor debate on health care reform, a key promise of the Obama administration, a new white paper summarizes the outstanding issues of the debate.

Five Myths About Medical Negligence is produced by the American Association for Justice (AAJ), a trial lawyers group based in Washington D.C., whose members represent those injured by medical malpractice, estimated to killed at least 98,000 a year. 

The opposing side of the debate is generally headed by the U.S. Chamber of Commerce and associated industries such as asbestos, insurance, and pharmaceutical companies that believe limiting lawsuits is necessary to slow the rising costs of health care down and protect its members.

Among the Five Myths AAJ addresses are: 

· Myth #1: There are too many “frivolous” malpractice lawsuits.

The actual number of so-called frivolous lawsuits filed a year is questionable. 

IB News asked the Institute for Legal Reform for examples of frivolous lawsuits. We asked the office of Sen. Saxby Chambliss who has just offered a “loser pays” proposal to keep down “frivolous lawsuits” and we asked the Texans for Legal Reform. So far none have been provided.

The case usually named, the 1994 McDonalds coffee burning case of Stella Liebeck, is generally regarded as a case with merit, as outlined in the documentary ‘Hot Coffee.’

Stella Liebeck

In 1992, Liebeck, age 79, of Albuquerque, New Mexico suffered third-degree burns over six percent of her body, primarily in her inner thighs, genital, and groin area, from scalding hot McDonald’s coffee.  She asked McDonalds for $20,000 to cover her medical bills. When the company refused she litigated. At trial, McDonalds admitted it had received more than 700 burn claims by others and still chose not to warn the public about its coffee, kept at 180 to 190 degrees rather than the customary135 to 140 degrees.

The $2.7 million the jury awarded her amounted to two days of coffee profits for McDonalds, but a judge reduced the award to $480,000 calling McDonald’s conduct "reckless, callous and willful."

Reed Morgan, who represented Ms. Liebeck against McDonalds told the Tulane Lawyer after the case that tort reform is not only "totally unnecessary" but also an assault on free enterprise.

"The general public doesn't understand that the vast majority of attorneys who handle plaintiffs' cases are entrepreneurs who don't have the financial wherewithal to do what an insurance company can do with ease - to spend as much money as it takes to win. A plaintiff's attorney is at severe risk in handling these cases. He's got a very tight budget. He's got to use common sense on what he can prove and what it is going to cost to prove it. He must ask himself, 'Does this case have merit?"'

While the number of " frivolous” lawsuits has not been calculated, the number of injured patients can be documented.

*  According to the Institute of Medicine, in its “To Err is Human” report, November 1999, about 98,000 people are killed in hospitals each year from preventable medical errors, such as wrong diagnosis, medication mix-ups or overprescribing or delayed treatment.

*  Recently, the Hearst newspaper group in its “Dead By Mistake” investigation into medical malpractice nationwide found that number to be closer to 200,000 individuals when you include hospital acquired infection.

*  A 2004, Healthgrades report from the independent health care ratings company reported that among 37 million patient records from all 50 states, there were 195,000 hospital deaths from preventable medical errors between 2000 and 2002.

Medical errors add another $29 billion to the cost of health care.

When Harvard looked at the files of 1,400 medical negligence claims they found that 97 percent had merit and that 80 percent involved death and serious injury. According to the authors of the 1990 study, “Patients, doctors, and lawyers,” found that “Portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

Are the injured all flocking to file a lawsuit?

Not really, Harvard School of Public health finds only one in eight people injured by medical negligence file a malpractice claim. And oftentimes that claim is to seek discovery, or records of what went wrong with their treatment.

And the National Center for State Courts finds the filings for medical malpractice dropped eight percent between 1997 and 2006 with awards dropping too, according to the National Association of Insurance Commissioners over 50 percent between 2003 and 2008.

The AAJ other "Myths" include:

2) Malpractice Claims Drive Up Health Care Costs

3) Doctors Are Fleeing

4) Malpractice Claims Drive Up Doctors' Premiums

5) And Tort Reform Will Lower Insurance Rates #

1 Comment

Posted by Chuck Pilcher MD FACEP
Thursday, November 05, 2009 11:21 AM EST

The two major things driving up the cost of health care are:

1) THE DISCONNECT BETWEEN COST, PROVIDER AND PAYER. Neither the doctor nor the patient has any economic reason to limit testing when a third party is responsible for payment. If you had "food insurance," would you buy steak or hot dogs?

2)PATIENT SATISFACTION. Physicians may fear the attorney, but they fear the dissatisfied patient even more. Patients trust technology more than doctors. "If I don't do the test," thinks the doctor, "my patient will think I'm stupid or don't care, and go to another doctor who WILL do the test, even if it's unnecessary." So he/she does the test.

Finally, as you point out, frivolous lawsuits are most often lost. And, there cannot be a "frivolous" lawsuit without an equally "frivolous" expert on the plaintiff's side. As I just wrote in a "Perspective" at LINK , "much of my profession’s animosity toward plaintiff attorneys should be redirected toward the 'experts' within the house of medicine whom those attorneys are able to hire." An honest opinion from a reputable physician early in the game can save a plaintiff attorney a lot of time and money.

Comments for this article are closed.

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