There is a public perception that there are too many medical malpractice lawsuits. We encounter this perception whenever we select a jury in a medical negligence case. Jury selection is not the time to engage in a debate about the reality of medical malpractice litigation, so we avoid such an argument. Yet, this perception affects jury verdicts in such cases.
Those of us who handle medical malpractice cases are familiar with the statistics that support our contention that the number of actual claims keeps declining. We also know that there are very few, if any, frivolous medical malpractice cases because the cost of pursuing any such case is prohibitive. Frivolous implies that the case is without merit, and we see no cases without merit being decided in favor of the patient. It is important that the public perception nonetheless be based on real facts and not fake news.
For example, CRICO Strategies is a division of the Risk Management Foundation of the Harvard Medical Institutions. The Harvard medical institutions are among the most prestigious hospitals in the country. CRICO insures all of the medical institutions, so it has a distinct interest in reducing the number of medical malpractice liability claims.
In 2018, CRICO released a report on medical malpractice in America based on a 10-year assessment. The purpose of the study was to understand the systemic risks underlying adverse events in health care to “determine what goes wrong repeatedly, gauge concerning trends, spot emerging risks and compare that information over time and across peer groups.” CRICO developed a comparative benchmarking system 20 years ago to gain insight into these trends and risks. Health-care providers and medical professional liability insurers began to engage in collaborative efforts to apply the knowledge gained to risk reduction. The Risk Management Foundation was established, in part, to implement an approach to reducing medical error through analysis of malpractice claims.
Some interesting findings in the study might change your opinion about the whole issue of medical malpractice lawsuits. In fact, according to the Harvard study, the number of claims has dropped 27 percent since 2007. In 2007, there were 5.1 claims for each 100 physicians. In 2016, the frequency of claims is 3.7 claims per 100 physicians. Thus, there is a dramatic change in the risk of being named in a medical professional liability claim. The biggest change in the number of claims affected obstetrician/gynecologists as they experienced a 44 per cent reduction.
In Missouri, there is a similar experience. The Missouri Division of Insurance has previously published a Medical Professional Liability Insurance Report but has not published a report the past two years perhaps because of the turmoil caused by the Eric Greitens revelations and resignation, but the last report published for 2016 was informative. The Missouri experience shows a similar decline in claims from 1,000 in 2010 to approximately 600 in 2016.
More relevant is the fact that the number of paid claims is substantially less than the actual claims. Payment is made in approximately one half of all cases. There is a shortened statute of limitations period of two years in Missouri on medical malpractice lawsuits. In other negligence cases including all other professional liability cases, the time limit for filing a case is five years from the date of the occurrence.
What happens on occasion is that a lawsuit is filed to protect the statute of limitations, but the case is never pursued. Those cases usually do not involve much expense for the insurer as the dismissal happens very early. The best indication of the risk to the health-care providers is the number of claims paid, which is declining.
In the Kansas City area – Jackson, Clay and Platte counties in Missouri and Johnson and Wyandotte counties in Kansas – there were only 11 malpractice cases tried to a verdict in 2018; in 2017, there were only nine. There were a few more in the years prior to that, but still the number keeps dropping. The total number of verdicts in all civil cases in all five counties in 2018 was 111. The public perception that there are too many lawsuits is perpetrated by those who want to “reform” the civil justice system.
The CRICO study also examined the indemnity payments made; this is the amount of money per claim that went to the patient when a monetary settlement was paid. In 2007, the average payment was $298,000, and in 2016 the average payment was $330,000. Only 2.2 percent of all cases had a payment of more than $1 million dollars.
It is not surprising that the primary determining factor of financial damages was injury severity. For some reason, the average payment was higher in Missouri. Yet, the amount spent on claims keeps dropping. There should be a corresponding reduction in the cost of malpractice insurance, but the insurance rates are not dropping in the same manner that the claims are declining.
There is much discussion today about fake news. Fake news is dangerous news especially when it affects how people behave in all kinds of settings. It obviously can affect voting trends, but there is also a real danger in the courtrooms in America. Therefore, it is important to base opinions on real facts and not myths. Otherwise, the playing field is unfair. Care enough to examine the facts.
Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at email@example.com