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Many people believe that lawyers file frivolous lawsuits, especially in medical malpractice cases. As a result, they also believe that medical malpractice caps reduce costs. The reality is different. Lawsuits are expensive, especially medical negligence suits. In Pennsylvania, as in most states, lawyers take these cases on contingency. This means if that the lawyer loses, they won’t recover anything for their time. In addition, the law firm generally lays out the costs of suit. This includes such things as filing fees, medical expert reports and testimony, gathering medical records and so on. The cost for a malpractice case can easily reach $50,000 or $100,000. This is a big risk for a lawyer to take on if they don’t believe in the case. There are also ethical risks. Lawyers who bring frivolous cases can be sanctioned by both the court and the Pennsylvania Disciplinary Board. On the other hand, evidence shows that medical malpractice caps do not decrease the cost of malpractice insurance. They do, however, interfere with an injured person’s constitutional right for compensation.
Medical malpractice cases require expert witnesses.
In Pennsylvania, we don’t have malpractice caps, but we do have certificates of merit. A certificate of merit is a document an attorney signs attesting that a medical expert believes that the defendant doctor violated the medical standard of care and hurt the patient. Most states have some form of affidavit or certificate that must be completed in order to bring a medical negligence case. The amount of evidence necessary to successfully try a medical negligence case is substantial. It takes an experienced, knowledgeable lawyer to try, never mind win these types of claims.
Each year, the Unified Judicial System of Pennsylvania releases statistics on medical negligence suits in Pennsylvania. In 2015, the most recent year for which statistics are available, there were a total of 1,530 medical malpractice suits filed. One hundred and six of those suits went to trial. (This includes both jury and nonjury trials.) The rest of the cases dismissed or settled.
In 2014, the Supreme Court of Florida found the cap on noneconomic damages unconstitutional. The Florida medical malpractice cap was implemented in 2003 by then Governor Jeb Bush. Governor Bush and the legislature, “argued large jury awards prompted doctors to flee the state and sent medical malpractice insurance skyrocketing.” In the opinion overturning caps, Justice Lewis wrote, “the evidence the Legislature used to pass the law was wanting. Florida gained more doctors in the early 2000s. Many of the cases ending with more than $1 million paid by the defendants came out of settlements, not jury trials.” When cases settle there is no concern that a jury will provide an excessive verdict, since both parties must agree on the end result.
Caps do not decrease malpractice insurance rates. They keep climbing.
A common complaint about medical malpractice cases is that they increase the cost of insurance. However, there is no evidence that caps decrease insurance costs or that lawsuits increase them. For example, Maryland has had a cap since 1986. However, the premiums increased more than 70% in the early two thousands. Missouri also implemented a cap in 1987. Its medical malpractice claims dropped, while its insurance rates increased 121% during the same time. Other states have seen similar results. After the implementation of Florida’s cap, premiums increased, “by as much as 45 percent.”
In the United States we have the right to obtain compensation when we are injured due to the negligence of others. Our jury system exists to not only determine responsibility on the part of defendants, but also, the damages the plaintiff should receive if their lawyers can prove liability. Juries hear the facts and are best able to determine an appropriate financial result. Further, if the judge feels the jury’s verdict is too high, they may choose to lower the amount to one they believe is more appropriate. This judicial control acts as a check on the jury’s verdict. The system is meant to be fair. Altering it in favor of one party has a disproportionate impact on plaintiffs. And that impact is entirely unnecessary due to the failure of medical malpractice caps to help decrease costs.
Medical mistakes are the third leading cause of death in the United States.
In 2014, medical errors became the third leading cause of death in the United States. Millions of people die every year due to mistakes in hospitals and by doctors. Many of those cases do not rise to the level of negligence, but they do make it clear that we have a serious problem with health care in this country. In addition, a surprising number of doctors are responsible for repeated negligence. Allowing hospitals and medical professions to escape or limit financial liability does not encourage improvement in medical care. Especially when some medical professionals are careless over and over again.
It is understandable that people are looking for someone to blame for the cost of healthcare. But the reality is that malpractice suits are not the cause of the problem. There are, given the number of people who see doctors every day, relatively few medical malpractice lawsuits. On the other hand, there are millions of people dying due to mistakes and negligence. Perhaps it is time to take a look at the healthcare industry and figure out where the problems are, instead of taking money away from innocent people who were injured through no fault of their own. These people and their loved ones already have to suffer, and sometimes die, due to someone else’s negligence. They don’t deserve to have their rights limited for no good reason.
If you or a loved one came across this article because you suffered due to medical malpractice, don’t hesitate to reach out to Lowenthal & Abrams. Our team represents victims of malpractice in Pennsylvania, New Jersey and New York. The consultation is free.
LOWENTHAL AND ABRAMS, P.C.
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