Medical Malpractice Suits

Medical Malpractice Suits

I frequently hear the claim that much of the cost of health care is medical malpractice suit related. What makes these suits expensive is not judgments. The vast majority of medical care does not result in a lawsuit, or even the threat of it. Even hundreds of multimillion dollar judgments are a drop in the bucket compared to the hundreds of billions of dollars a year we spend on medical care.

From what I have read, most of these suits are unjustified, and the doctors and hospitals usually win. The costs imposed are that doctors practice "defensive medicine," running lots of tests that are probably not required to make sure that, if someone sues them, they can demonstrate that they checked for every possibility--no matter how unlikely. Still: does anyone think that the extra tests are adding tens of billions a year in costs? I'm very skeptical.

Nonetheless, there is an enormous amount of wasted time and resources that such suits bring about. Here's a very well-written account (in 24 parts) by an E/R doctor describing what he went through as a defendant in a malpractice suit that sounds pretty baseless. (Admittedly, it is from his perspective, so perhaps it wasn't quite as baseless as he makes it sound.) His description does capture much of the wasted time and energy that what turned out to be a losing suit caused--and you can imagine the amount of money that the hospital's insurance company spent.

One of the problems is that even when a doctor does everything right--people still die. There are examples of clear malpractice out there, and it is one of the reasons that I can't feel comfortable limiting the right to sue--but so many of the cases that I have read about over the years come down to this:

1. Mr. X dies, and Mrs. X is left penniless, or Little Johnny has surgery, and is left unable to care for himself for life.

2. A doctor or hospital's insurance company has deep pockets.

3. A jury feels sorry for Mrs. X or Little Johnny.

4. A lawyer knows that there is a small chance that a jury who feels sorry for Mrs. X or Little Johnny will award several million dollars--and the lawyer will get a million dollar or more payment contingent on winning. This strongly incentivizes lawyers taking cases that he knows are bogus, and doing his best to make sure that he wins them, no matter what damage has to be done to the truth to get it.

This is part of why I support a "loser pays" system, whereby if you sue someone, it goes to trial, and you lose, you are obligated to pay the legal fees of the defendant. I have once been the target of a completely frivolous lawsuit that should have been grounds for disbarment or worse.

There are some thought-provoking comments by readers that you should consider. I don't know if the facts contained therein are true, incomplete, or false, but they are certainly intriguing:

In the criminal law, the plea bargain rate is 97%, and the verdicts at trial are guilty, in 80% of cases. That is comparable to the success rates of medicine. The criminal prosecution is done by young people out of law school, paid very little, carrying dozens of cases, with a burden of proof of beyond a reasonable doubt (80% certainty, not 51% certainty as in medmal). They have multiple elements to each crime. They must prove it took place, and that each was intentional. So lawyers have the ability to work at high standards, even inexperienced young recent grads.

The torts system is a scam to plunder all productive entities. If a medical group has 4 lawsuits, it screams. A business with the same gross income will have 400 lawsuits all the time, forever. The majority are by greedy, seedy, plaintiffs, real low life parasites. The blame others for their carelessness and demand to be paid to return to their addictions, criminality, and general seediness, subsidized by the rest of us.

and:

We have a partial loser-pays system in my state, and I have obtained judgments of $25,000-$35,000 for trial costs and attorneys’ fees. However, these judgments are almost invariably worthless, because the great majority of losing plaintiffs are uncollectable, having always subsisted on welfare, disability, handouts from relatives or the kindness of strangers. In death cases, the decedent’s estates have no assets. Such people are undeterred by loser-pays.

When early discovery reveals a plaintiff with a steady job, stable family/residence, and no history of substance abuse, criminal convictions or psychiatric hospitalization, it generates considerable discussion among the defense lawyers, because it is so rare, and because it might mean that the plaintiff actually has some skin in the game.

UPDATE: A reader in South Carolina is a medical malpractice lawyer, and says that he disputes that most malpractice suits are without merit. He says that when he takes a case, he often spends $50,000 to $100,000 on experts before it gets near a courtroom, and any lawyer who regularly brought suits without merit would go bankrupt. I'm curious to see hard data on the number of medical malpractice suits brought each here in the U.S., and their disposition.