A new analysis by Harvard Medical School researchers indicates that while the number of successful medical malpractice claims in the U.S. has fallen – dramatically so – the average payout in successful claims has risen.
Between 1992 and 2014, the number of medical malpractice claims nationally that resulted in a damage award to the plaintiff fell by a stunning 56 percent, researchers reported. However, the average amount that was paid out for claims that were successful climbed by almost 25 percent, from an average of $287,000 between 1992 and 1996 up to $353,000 from 2009 to 2014.
There are a few things going on here. The first is the very obvious effect of tort reform on medical malpractice lawsuits. Lawmakers across the country, under intense pressure from big industry lobbyists, have steadily carved away at plaintiff access to the courts for claims of negligence by medical professionals.
Take Florida for example. In 2003, the state legislature approved a sweeping law that capped non-economic damages (those for pain and suffering) in medical malpractice wrongful death lawsuits at between $500,000 to $1 million, depending on the circumstances and people involved. This was done, lawmakers insisted, to curb the rising costs that were driving doctors out of the state and increasing health care insurance costs for everyone.
However, the Florida Supreme Court in weighing the constitutionality of that provision in 2014 blasted the legislature for “creating an alleged medical malpractice crisis” that didn’t actually exist, and unconstitutionally discriminated against those most grievously injured and sustained the greatest losses. That case was McCall v. U.S, but the ruling applied only when a person died due to medical malpractice. It’s slated to hear another case considering the same principle, but for individuals who survive medical malpractice. Florida’s 2nd District Court of Appeal ruled existing state damage caps are unconstitutional, and upheld a $23 million verdict. In that case, doctors reportedly failed to administer certain medications to bolster the development of an unborn child’s brain and lungs, despite her mother’s worsening preeclampsia symptoms that would inevitably require a premature delivery. The child now suffers severe neurological impairments and requires 24-hour care the rest of her life.
Still, these caps on damages have had something of a chilling effect on medical malpractice claims because personal injury lawyers, who take on these cases on a contingency fee basis, are hesitant to pursue claims that may be tougher to win. The contingency fee structure allows plaintiffs who would not otherwise be able to afford an attorney to access the civil justice system to gain access because they don’t have to pay anything upfront. Injury lawyers are only paid if they win. It’s a gamble for law firms, and it means they have to place their bets on cases that have a real shot at winning. Laws that make it tougher to receive just compensation results in fewer injury attorneys willing to take on these cases. This is particularly true of medical malpractice claims, which already require hefty investments for investigation and expert witness testimony.
It should also be noted that while those multi-million dollar claims tend to make the most headlines, they comprise a relatively small percentage of all medical malpractice lawsuits. Harvard researchers reported that of the more than 280,000 claims paid between 2009 and 2014, only 8 percent topped $1 million. Of those, about one-third involved a patient death.
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Fewer Successful Malpractice Claims in U.S., But Higher Payouts, March 27, 2017, By Dennis Thompson, HealthDay
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