Excerpted From the Pennsylvania Association for Justice, 08.19.11
Introduction. The statistics from our Supreme Court show that there is no medical malpractice crisis. Rather than taking away the rights of victims of negligence in the name of “lawsuit reform,” our Legislature should be concerned with patient safety, which continues to be an epidemic. A study published this year in the journal, Health Affairs, reports one in three hospital patients suffers a preventable medical error, such as an infection, wrong medication or surgical mistake.
1. Myth: Lawsuits Are Out of Control.
Truth: In 2010, there were 1,491 filings, a 45.4 percent decline from the “base years” 2000-2002. In
Philadelphia, the state’s largest judicial district, the decline has been nearly 70 percent during the same
period. 1 In the last 12 months, there were 1,797,869 discharged from Pennsylvania’s hospitals. 2
2. Myth: Lawsuits Cause “Defensive Medicine.”
Truth: (1) The nonpartisan Congressional Budget Office found evidence of so-called “defensive
medicine” only in Medicare programs, not in private managed care programs. Private managed care
programs “limit the use of services that have marginal or no effect on patients” whereas Medicare does
not. 3 Bad management causes “defensive medicine,” not lawsuits. See also The Real Story on Defensive
Imaging, available to Members on the PAJ website. (2) A 2010 Dartmouth nationwide study found that
a substantial number of cardiologists said they would perform “non-clinical” procedures, not because
of fear of lawsuits, but because “they believed a colleague would do so in the same situation” and/or
“because of the added income they could earn by performing the procedure.” 4
3. Myth: PA Has Not Acted to Halt Insubstantial Med Mal Lawsuits.
Truth: In 2003, the Pennsylvania Supreme Court promulgated rules that require (1) an attorney
representing a plaintiff to obtain a certificate from an independent doctor who says that the case holds
genuine merit, and (2) that a lawsuit can only brought in the county where the medical care was
rendered. 5 PA Supreme Court Chief Justice Ronald D. Castille: “Pennsylvania’s Judiciary collaboratively
addressed a complex medical malpractice litigation crisis, and the latest figures show the progress
made in the last seven years. One of our fundamental priorities is to assure the Commonwealth’s
citizens that the legal process will not be abused in malpractice cases. We’re very encouraged by these
statistics. The crisis is over.” [emphasis added] 6
1 See Latest Medical Malpractice Data Shows Number of Filings Reach New Low, Administrative Office of PA Courts, May 18, 2011.
2 See Pennsylvania Health Care Cost Containment Council’s Inpatient County Profiles, Statewide Counts, 2009 Q4 – 2010 Q3.
3 See Letter from Douglas W. Elmendorf, Director of the Congressional Budget Office to the Hon. Orrin Hatch, October 9, 2009.
4 See The Dartmouth, Study: Regional trends found in cardiology test, May 3, 2010.
5 See Pa Supreme Court Rules in Professional Liability Actions, Rules 1042.3 and 1006, Administrative Office of Pennsylvania Courts,
January 7, 2003.
6 See Latest Medical Malpractice Data Shows Number of Filings Reach New Low, Administrative Office of PA Courts, May 18, 2011.
4. Myth: Physicians Are Fleeing Pennsylvania.
Truth: According to the American Medical Association, the number of physicians in Pennsylvania has
risen from 36,603 in 2000 to 44,336 in 2009. In those same years, the number of physicians per
100,000 people in Pennsylvania has remained steady from 295 to 317. 7
5. Myth: Costly Medical Liability Insurance is Attributable to Lawsuits.
Truth: As the number of medical malpractice lawsuit filings has declined sharply, Pennsylvania
insurance carriers have nonetheless increased their earnings from medical liability insurance premiums.
In 2002, the amount of insurance premiums they earned was $458,131. In 2009, the amount they
earned was $721,729, which is almost double. 8 Notably, during this same time period insurance
companies have reduced their payouts from $510,741 in 2002 to $326,153 in 2009, a 38% drop. 9 A
national study released 8/18/11 by the New England Journal of Medicine found that most claims
submitted by patients are dropped without payment.10 This confirms what we have known in
Pennsylvania for some time: Insurance companies continue to gouge doctors with ever-increasing
premiums even as they take in record profits and reduce payouts.
6. Myth: Enacting “Tort Reform” laws would reduce health care costs greatly.
Truth: The Congressional Budget Office found that if every possible “tort reform” were enacted
across the United States, the savings realized would amount to a savings of only 2 percent of total
health care expenditures. Even then, were such draconian measures adopted, the nation’s mortality
rate would increase by .02 percent. 11 That’s almost 5,000 preventable deaths per year.
Patient Safety is the Real Issue.
Medical errors kill more people every year in the United States than breast cancer, prostate cancer,
drunk driving combined.
Medical Errors 98,000 12
Breast Cancer 40,230 13
Prostate Cancer 32,050 14
Drunk Driving 10,839 15
Total: 83,119
7 See Physician Characteristics and Distribution in the U.S., Various Editions, American Medical Association.
8 See Annual Statistical Report of the Insurance Department of the Commonwealth of PA (“Commissioners Reports”), 2002-2010. (Page
667 in 2010 Report.)
9 See Annual Statistical Report of the Insurance Department of the Commonwealth of PA (“Commissioners Reports”), 2002-2010. (Page
667 in 2010 Report.)
10 See Malpractice Risk According to Physician Specialty, New England Journal of Medicine, August 18, 2011.
11 See Letter from Douglas W. Elmendorf, Director, Congressional Budget Office, to Hon. Orrin Hatch, October 9, 2009.
12 See U.S. Institute of Medicine, To Err is Human, 2000
13 See American Cancer Society, Cancer Facts & Figures 2010, p. 6.
14 See American Cancer Society, Cancer Facts & Figures 2010, p. 6.
15 See National Highway Traffic Safety Administration, Traffic Safety Facts, 2009 Data,
The above article was provided from the desk of John R. Badal. President of the law firm of Liever, Hyman & Potter, Reading, PA . We have been representing clients successfully since 1959. Our clients are primarily from Berks and Schuylkill Counties and have been the victims of Medical Malpractice, Nursing Home neglect, car, motorcycle and truck accidents, work injuries and product defects.
