Myths on Medical Malpractice Litigation Debunked

Excerpted from the Pennsylvania Association for Justice, 08.19.11

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. In the last 12 months, there were 1,797,869 patients discharged from Pennsylvania’s hospitals.

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. Bad management causes “defensive medicine,” not lawsuits. (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.”

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 be brought in the county where the medical care was rendered. PA Supreme Court Chief Justice Ronald D. Castille stated: “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.”

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, going from 295 to 317.

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. 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. A national study released August 18, 2011, by the New England Journal of Medicine found that most claims submitted by patients are dropped without payment. 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 only 2 percent of total health care expenditures. Even then, were such draconian measures adopted, the nation’s mortality rate would increase by 0.02 percent — 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, and drunk driving combined.

• Medical Errors – 98,000
• Breast Cancer – 40,230
• Prostate Cancer – 32,050
• Drunk Driving – 10,839
• Total – 83,119