Malpractice Myths

Of all areas of personal injury law, perhaps the most misunderstood is the area of medical malpractice or medical negligence. Because of the important role doctors, hospitals and healthcare providers play in our day-to-day lives, many people assume that an unsuccessful outcome to a particular treatment ensures that a successful claim can be made. 

The origin of this misconception is somewhat in dispute. Undoubtedly lawyers themselves share some of the blame as they are quick to publicize their best results with an eye on attracting new clients. The media is also a participant in this exercise as huge verdicts make for interesting human interest stories and also breed discussion about so-called "malpractice crises."

Finally, there are the doctors themselves.  For some specialties, such as obstetrics and gynecology, malpractice insurance rates can be expensive and  this can somewhat reduce the substantial incomes doctors routinely earn. If the doctors complain to the media and to the politicians about the substantial expense of their malpractice insurance, there is an inevitable tendency for the public to have the notion that judges and juries are routinely ordering substantial payments in cases both good and bad. 

The reality of the verdicts is entirely different.  While there is slight variability, the studies of malpractice verdicts show that the injured parties lose 85 to 90% of cases taken to trial.  To put it more simply, doctors and hospitals win 9 out of 10 cases and the injured victim receives nothing.  This is a reality that receives relatively little play in newspapers and on TV.  Another jury verdict in favor of the doctor and against the injured party simply does not spark much interest. http://www.maryland-law.com/blog/district-of-columbia-medical-malpractice-verdicts-2009.cfm

This breeds the question, why is the public perception that victims of malpractice get huge amounts of money when the reality is they do so very rarely?

A good deal of research has been done in recent years on this topic and serves to expose the "myths of malpractice" that is the title of this article.

Clark and Steinhorn have been actively involved in the investigation and trial of medical malpractice cases in the District of Columbia and Maryland for many years and welcome serious inquiries, free of charge.

Myth #1

Juries sympathetic with their fellow members of the public routinely award them large amounts of money with the knowledge that there is insurance to pay for it. 

This first myth represents a misleading assertion of the doctors and their insurance companies.  As indicated earlier, 85 to 90% of the victims of malpractice lose their cases at trial.  While there have been a number of anecdotal explanations put forth for this, the most scientifically based ones in which actual jurors in malpractice cases were interviewed, indicate several reasons why jurors almost always find for the healthcare providers.

The first and most basic reason, stems from the historic esteem in which our society has held doctors.  Everyone knows that becoming a doctor takes a tremendous amount of hard work and intelligence and involves many years of education.  It is inevitable that members of society who make up the juries would have a predisposition to look up to doctors and be more apt to accept their explanations about "mistakes".  Similarly, everyone on a jury has had experience with doctors.  We all place our health and safety in the hand of doctors and generally they are successful.  Thus, it appears the initial factor which works in favor of the doctors and against the injured is their societal status and importance. 

A second significant variable involves the issue of insurance.  In many jurisdictions in the Unites States (including Maryland, the District of Columbia and Virginia) the existence of insurance is a forbidden area of discussion by lawyers or witnesses.  Routinely the inadvertent mention of insurance results in a trial being terminated or mistried with the result that the parties have to come back again months or years later to retry the case, incurring the expense of bringing in all of their witnesses and experts.

Thus everyone is quite careful not to mention insurance.  The reasoning  presupposes that jurors would be more apt to award money to injured individuals if they believed it was merely coming out of an insurance policy rather than out of the doctor's pocket.  Interestingly, the modern research on this reveals the exactly opposite effect. 

Interviews with jurors reveal that in their deliberations, they routinely discuss insurance and generally assume that all litigants are insured in some way.  This includes their notion that the injured parties are insured and consequently will not be harmed by a verdict for the doctor.  Obviously in a nation that has 54 million uninsured, this is often a misconception and serves to penalize the injured party.

What is more interesting in understanding the verdict pattern however is that jurors routinely express concern that if they had rendered any verdict for the injured party it would affect insurance rates.  This is proven true in automobile accident cases and malpractice cases.  

Thus, the hidden role of insurance in deliberations has the opposite effect that the court system had anticipated.  That may be because the legal opinions which have promulgated these "don't mention insurance" rules occurred in a far distant time, when states did not require drivers to have automobile insurance and when the cost of medical insurance was a tiny percentage of what it is today . Long before the insurance industry had gone to such great lengths to mislead the public into believing that huge verdicts were distorting the economics of the medical care system. 

A final factor mentioned in the literature on this subject involves jury composition. Jury participation has increasingly become a middle and upper class occupation.  When lists for jury service are derived from voter registration, there is a huge reduction in the participation of less well off citizens as jurors.  Inevitably, juries tend to be more likely to consist of individuals who are more concerned about insurance rates than fairness to disadvantaged victims of medical malpractice. 

Myth #2

The clear cut cases are all settled and only the weak cases go to trial. 

As with many myths this one has a kernel of truth in it.  It is true that cases of clear liability and serious permanent injuries or death receive much more attention from the malpractice insurance companies and their lawyers.  Unfortunately, a number of other factors weigh just as heavily on whether a case is settled or taken to trial. 

Some of these involve such complex factors as the reserves put aside by the malpractice insurance carriers for settling claims and paying verdicts in a given year.  Routinely those of us who represent victims of malpractice hear from the defense lawyers that they have recommended that a particular case be settled but that the particular insurance company either has insufficient reserves to pay a fair settlement on the case or alternately that they have allotted all such money for the year and that any effort at settlement will have to occur the next year. 

Why does this occur? This may be a fiction in which the defense lawyer gets to play the good cop to the bad cop of the insurance company in attempting to force the plaintiff and his lawyer into a settlement for less than what is fair.  Most of it however appears to stem from undercapitalization of reserves for cases. 

Without engaging in a complex explanation of the reserve process, insurance companies are obliged by the law to set aside a certain amount of money to pay future claims.  This process of setting a "reserve" is important because the bulk of the money made by the insurance industry (estimated in 2007 as being more three trillion dollars) is made through investment of their insureds' premiums.  This is a tricky business.  When the market is up the insurance companies make tremendous amounts of money without regard to how much they pay for injury cases.  When the market is down or when the insurance companies make risky investments (as they obviously have look at AIG), the insurance companies lose tremendous amounts of money and seek to increase their revenue through increases in premiums paid by the public including doctors and hospitals.  This is the origin of the many malpractice crises seen across the country.  It is far easier for insurance companies with their vast resources to propagate the myth that they are losing money because of huge jury verdicts rather than to admit that they have made risky investments which have back fired on them. 

Myths #3

Runaway verdicts are making medical care more expensive and damaging our society.

Perhaps the most famous runaway verdict in the public consciousness involves the McDonald's coffee lady.  As with many fairy tales in our society, this case has been seen to stand for the power of the runaway jury to award millions of dollars to a woman who spilled coffee in her own lap.  The actual facts of the case are lost in history and in the confidential settlement of the case which ultimately occurred after the "runaway verdict" was reduced to a minute percentage of the amount awarded by the jury. 

Interestingly, the verdict itself had a very sensible basis.  The woman injured sustained severe burns to her thighs and other delicate areas. It was clear at the trial that McDonald's was aware that keeping their coffee much hotter than any of their competitors was going to result in two things.  The first was a substantial increase in their coffee sales over their rivals.  People like hot coffee and obviously if you give them their coffee at 185 degrees rather than 165 degrees the coffee will stay hot longer.  The second result, also predicted by McDonald's, was that there would be a major uptick in claims against McDonald's for burn injuries. 

The number crunchers did the math and determined that they would make far more money from the hotter coffee. The injured, well, they just get worse burns.  The jury verdict was for 1 day of coffee sales at McDonald's restaurants.  The jury heard all of the evidence of McDonald's schemes and heard the seriousness of this woman's injuries and made an award that was intended to encourage McDonald's to give consideration to the health and safety of its patrons. 

The case has been used by many commentators as an example of a jury system run amok but of course a close scrutiny of the case yields a precisely opposite reality. 

Every case in this country that is tried before a jury is also tried before a judge.  Every case without exception.  The judge hears all the same evidence as the jury and when a jury verdict is rendered the judge is empowered to throw the verdict out all together, to reduce it or to affirm it.  Every judge, every case, every trial, every verdict. 

Thus, when we hear about a verdict that seems large, recognize that the trial judge has evaluated the same evidence as the jury and has determined that the verdict was fair.  The same people in the insurance industry and in the political chattering classes who complain about jury verdicts will often complain about judges.  This tends to break down along political lines with Republicans decrying "activist" judges and runaway juries.  In fact, despite the recent democratic tilt in our country, the overwhelming majority of federal judges in the trial courts, appellate courts, and even the Supreme Court were appointed by Republican presidents.  The notion that some sort of "conspiracy" between activist judges and runaway juries is resulting in large verdicts is simply incorrect.

If these protections were not enough there remain of course the rights of appeal at all levels of the court system.  If a large verdict has occurred, the trial judge has affirmed the verdict then an aggrieved party can appeal.  Again the federal appellate courts of our country are populated to a disproportionate degree with Republican presidential appointees.  If they believe a verdict was inaccurate or incorrect they to can throw it out all together, reduce it or remand the case for further proceedings at the trial court to determine the fairness of the verdict itself and the amount awarded.  Finally, there are the still higher reaches of the Maryland Court of Appeals, the District of Columbia Court of Appeals and the U.S. Supreme Court.  Thus the runaway verdicts of our society are subject to multiple levels of review for fairness and reasonableness.

In this regard quite a number of studies have shown that poor investment strategies of the insurance industry result in decreased profits or in some instances losses which they seek to blame on jury verdicts.http://www.maryland-law.com/library/the-truth-about-medical-malpractice.cfm  How do they accomplish this?  The insurance industry has a tremendous amount of money and a tremendous amount of political influence.  The medical establishment is also extremely wealthy and influential.  If a doctor's medical malpractice insurance rates increase substantially from whatever cause, they have powerful friends, in both state and federal government, who will complain on their behalf. 

These are the so-called malpractice crises.  The result of these crises has been to penalize the most seriously injured individuals by imposing limits on jury awards and settlements in malpractice cases.  Maryland  enacted such limits in 1986 making $350,000.00 the maximum amount one could recover for pain and suffering and limiting damages to injuries which are economic in nature.  What this meant was that higher paid members of society would inevitably receive bigger payouts even for precisely the same injury as someone who made less money. 

The math is simple if you are making $100,000.00 a year and your injury takes you off work for six months, you lose $50,000.00 in wages.  For an unemployed person, they do not get such wages and consequently under no circumstance can the top end of their award be as great.  Gradually the unfairness of this rule became obvious.  A parent whose child has died as the result of the clear cut negligence of a doctor is only able to recover a maximum of $350,000.00 for the loss of their beloved child.  Factor in the cost of pursuing such a legal action and the attorney's fees associated with such an action (now routinely 40%) and one could lose the most precious thing in one's life and receive a payment of $175,000.00.  The public has become aware of the unfairness of this law. 

In Maryland, members of the public have testified before the legislature about the unfairness of the law and its profound effect on their families.  Gradually the legislature has increased the non-economic damages cap but a false "medical malpractice crisis" occurred again in 1999 which made the rules applicable to malpractice cases more limiting than those that would apply to any other source of injury.   The District of Columbia has made its medical malpractice laws far more stringent and there is a constant battle with the insurance industry to ensure that citizens of the District are not disadvantaged further.


Myths #4

The treatment did not work I must have a strong case.

Of all the myths this is among the most dangerous.  We all assume that the medications and treatment prescribed by our doctors will be effective.  When they do not work properly we often seek to pursue a claim as though it were a failure on the part of our auto mechanic to repair a flat tire. 

The fact is that while there are many scientific aspects of medicine today, much of it involves guesswork and experimentation.  Because of this, it is unfair to hold healthcare providers to a standard of perfection and jurors rarely do.  To be mindful of this from the outset in a possible malpractice is extremely important.  We may remember vividly telling a doctor that we were allergic to a particular medication but the fact is if it is not in the doctor's note a jury will believe the doctor not the patient. 

As a consequence developing the evidence necessary to substantiate a malpractice claim can be very difficult.  Obviously, if you suspect something has gone wrong it would be desirable to bring another individual with you as a secondary witness.  What a doctor says in the privacy of his office to his patient is often very different from what he says at a deposition or a trial years later.  If you bring someone as a witness, take the time to discuss with them beforehand the medical issue that you perceive is involved.  Often doctor-speak is difficult to understand.  Do not hesitate to ask for explanations of medical terms and the significance of tests or findings.

After your meeting discuss what was said with your friend or witness and write down what was said.  Sometimes it may be appropriate to send a written letter to the doctor addressing what he has said and pointing out factors you perceive will later make your case stronger.  Obviously, meeting with a lawyer experienced in such matters and discussing the facts of your case can be vital to making such a case stronger at a later date.