Originally Posted by KSig RC
MedMal lawyers will tell you: about one case in a thousand has enough merit to go to trial, in any shape - physicians still win the "public opinion" battle here. So yeah, while there are some "chop shop" firms, the overwhelming majority of cases are not fueled by attorneys at all. In fact, medical malpractice is likely grossly underreported, because "minor" malpractice has no recourse (trials are brutal, on the doctors, on the families, on hospitals, even on the insurance companies who need to keep a careful balance sheet to pay out all premiums paid in).
Studies of potential tort reform methods indicate that capping non-economic damages at $250,000 in every state that does not have such restrictions already would reduce medical malpractice premiums by a whopping . . . 8%. The problem obviously isn't verdicts.
The problems with malpractice insurance, as it relates to medical costs, are difficult to pin down - insurance companies claim the problems are "huge awards" that happen rarely in reality (and usually only for deaths/permanent disfigurement/botched births), doctors and insurers blame fear of litigation for "defensive medicine" that drives costs up across the board, attorneys blame doctors, and the consumer really doesn't care because they foot the bill either way.
I haven't proposed capping malpractice verdicts, just asking that lawyers actually check that they sue the correct physicians before they send in the paperwork. I don't like being accused of being incapable of performing procedures I didn't perform!
There are a couple of problems with this (not "logical" problems, but endemic issues as medicine and litigation interrelate):
1 - If "defensive medicine" actually does its job and reduces lawsuits (because verdicts and/or sheer number of lawsuits are the problem), then it should pay for itself, and insurers should be all for it, right?
The problem is that defensive medicine is not good for patients and is expensive which drives escalating health care costs. (Please see earlier posts)
2 - And if defensive medicine doesn't "work" (under our operating definition), then the problem is on the supply side, and not the demand side, right?
I'm not really sure what you mean by this. Ordering every test under the sun doesn't mean you are going to improve outcomes. A lot of tests have ambiguous results, lead to further tests and have complications.
3 - Isn't one of the problems with the "system" (as it were) that you're generally discouraged from testifying in these cases you say you could have testified in? Wouldn't that drive the case to settlement/fair-value judgment much faster? Remember, the long, drawn-out process you describe earlier is only partly a product of the plaintiffs' bar (which will generally carpet-bomb with claims, then clean up the mess later once discovery begins) - the insurers, who generally take over the case from the doctor/hospital immediately, have much more to gain from a long, drawn-out process than the plaintiffs do.
I have been involved in only one case where I was deposed for the plaintiff. It was in Louisiana. The medical review board (which was apparently composed of "Good Ole Boys" because this was an obvious case of malpractice) found that there was no malpractice. He decided to sue the hospital anyway, so I was deposed but it went no further. As far as I know, there is no clause in my malpractice insurance that says I can't testify against another physician. That being said, in private practice, I can know about cases but not have enough first hand knowledge to actually testify in court about them.
I can't say this last part strongly enough: insurance companies who have taken over defense for the doctors have made an amazing mess of costs as well. Whether it is dragging discovery out for six years in a cerebral palsy birth case to get the family to "quit" or accept a favorable settlement (because of pain, needing money, private insurance reaching its cap, etc.); or calling 30 experts to testify about causation, life care exceptions, state aid or just to read an MRI (at an average of $1,000 an hour); or using the same "trial in a box" that has been used for 35 years in court - all of which actually happen in just about every botched-birth case, etc. - the attorneys from the defense side are just as much the problem.
Don't get me started on cerebral palsy. This is not due to BIRTH TRAUMA. It's perinatal ischemia. OB-GYNs get so much shit for delivering babies. It is impossible to tell when the brain injury occurred unless there is a VERY WELL documented incident during the delivery. Most of the time, there isn't.
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