In their paper, Five myths of medical malpractice, David A. Hyman, MD, JD and Charles Silver, JD examine medical ethics and suggest five misconceptions of the medical profession and the influence of medical malpractice claims on society.
Truth #1 Large and recent settlements do not indicate an increase in frequency of medical malpractice claims. In fact, Hyman and Silver found evidence asserting that medical malpractice claims are becoming less frequent and payout amounts are falling as well. Per physician medical malpractice payout is 46% lower than in 1992. Between 1992 – 2001 payout amounts remained generally the same, but after 2003, payout amounts began to decline. These declines were found both in states that with damages caps, as well as states without caps. Although the media has been presenting stories showing large verdicts for plaintiffs, the fact is that less than 95% of the cases have results such as these. Most often, cases are resolved and settled at the plaintiff’s discretion.
Truth #2 The tort system does not exactly encourage more medical malpractice claims and clients seeking “jackpot” payouts, despite the media’s portrayal of medical malpractice cases. Many patients who have suffered a legitimate claim may go without pursuing litigation simply because they are uncertain as to whether or not they have been a victim of medical malpractice, or simply experienced bad luck. Conversely, individuals who faced accidents that were not caused by negligent acts pursue litigation hoping to receive a large “jackpot” payout at the end. Because of the lack of information or an individual’s inability to find an attorney to fairly and accurately represent their case, the system is offset by an overwhelming under and over claiming. The media tends to only misrepresent the reality of these cases by only reporting on big cases where plaintiffs are awarded large damages. However, only about 2% of claims are actually tried and 75% of the time, practitioners win.
Truth #3 Medical providers are not one verdict away from bankruptcy. Because most cases settle before trial and juries often rule in favor of the defendant, rarely is the financial well-being of a practitioner compromised. Additionally, rarely does an attorney pay out of pocket for their own negligence – most costs are covered by insurance.
Truth #4 Medical providers do not move in large numbers to states with damages caps. Research has show small movements to areas with caps on damages, but not a significant enough number to attribute the shift to caps specifically. Eventually if all states have caps, the incentive to move would be removed.
Truth #5 Tort reform will not dramatically lower health-care spending. It has been argued that if damages were capped and the likelihood of litigation being pursued by clients lessened, physicians would spend less on unnecessary tests taken simply as a defense against medical malpractice claims. However, this evidence, originally presented by Kessler and McClellan, had flaws in that the researchers had looked specifically at one population of patients. After further research it was found that tort reform would not dramatically lower health-care spending with all patients and situations.