What is Medical Malpractice?
Medical malpractice occurs when a health-care provider deviates from the “standard of care,” or what another provider would have reasonably done based on the same circumstances. If this negligence or deviation from the standard results in injury or damages, then a patient may have a claim. However, just because an injury or adverse outcome occurs doesn’t mean that a doctor acted negligently. Sometimes the patient themselves can make a vital mistake that leads to a negative outcome, and in other cases, even taking all of the correct steps will not lead to a positive outcome.
Therefore, medical malpractice cases can be very complex and contentious because adverse outcomes don’t necessarily implicate malpractice and the idea of a “reasonable standard of care” leaves much to interpretation. Given the complex nature of medicine, however, mistakes are certainly made. But when hearing about medical malpractice claims specifically, many assume that a lawyer can file a suit for any injury regardless of the circumstances, thereby pressuring a doctor or insurance company into settling and paying money for a frivolous claim.
When looking at the evidence however, this idea is both untrue and unsubstantiated.
In many cases, a judge can dismiss a claim without ever going to trial if the facts do not support the claim. In Massachusetts, for example, after filing a medical malpractice claim, the plaintiff’s attorney must file an Offer of Proof, which requires that the case be reviewed by a three person tribunal, consisting of a judge, physician from the same field of practice as the defendant, and a third party attorney before the case can even go forward. Thus, if an attorney invests too much time and money into frivolous suits, they will not make any money. Especially for medical malpractice claims where attorneys are forced to spend tens of thousands of dollars on experts, depositions, and various forms of discovery to determine the root cause of the injury, if the case is truly frivolous, the attorney will be throwing money away. Simply from a self-preservation standpoint, there is no reason for the attorney to make a bad investment on a weak claim.
Procedure and motive aside, the statistics on the current medical malpractice system also reinforce the idea that frivolous claims are far less common than generally assumed. Referencing a list of facts compiled by the Kansas City medical malpractice lawyers at Fowler Pickert Eisenmenger, LLC, the numbers seriously call into question the commonly held belief that most medical malpractice claims are without merit and that attorneys use the subjective nature of malpractice cases to their advantage.
Five Common Myths About Medical Malpractice
1. Most medical malpractice claims are without merit.
Myth – A 2006 study done by the New England School of Medicine found that only 3% of the claims studied had no adverse outcome from medical care and that 63% were directly attributed to error. This means that a very small percentage of claims are truly frivolous, and the third that aren’t directly attributed to error are close calls.
2. Most claims without merit still end up receiving some form of compensation.
Myth – The same study found that 73% of claims received compensation in accordance with its merit. The remaining 27 percent of claims were split between payment in the absence of documented injury (0.4%), payment in the absence of error (10%), and no payment in the presence of error (16%). This shows that payment where there is no injury almost never occurs and that a plaintiff is more likely to not receive compensated for an error than they are to be incorrectly compensated for no error.
3. Eliminating frivolous medical malpractice claims would have a serious impact on the cost burden of litigation.
Myth – Eliminating claims that did not involve errors would only decrease the direct system costs by no more than 13 percent (excluding close calls) to 16 percent (including close calls).
4. Hospitals catch and report most errors and incidents involving patient safety.
Myth – According to a 2012 study done by the Department of Health and Human Services, hospital incident systems fail to captured most events related to patient safety, leaving 86% unreported or recorded.
5. Most victims of medical malpractice end up suing.
Myth – A 1991 study found that the fraction of medical negligence that leads to claims is under 2%, showing that many victims of error either don’t know that an error occurred or never seriously considered litigation.
A little research shows that the medical malpractice system in the United States is frequently misunderstood. While there is always room for improvement, the current system is fairly good at sniffing out frivolous claims and only awarding compensation where it is due. Furthermore, the notion that lawyers siphon money out of the system via frivolous litigation is mostly false. As long as physicians remain fallible humans, there is a need for some level of oversight that attorneys can provide. Until physician’s migrate over to a system that involves voluntary disclosure and compensation, which has been proven to work, medical malpractice is very real and some form of whistle blowing is necessary to protect the rights of patients everywhere.