Center for Legal & Responsible Commerce

Medical Malpractice Myths

        It was inevitable that the forces that seek to limit a negligently or even willfully injured patients recovery come to Illinois, and as luck would have it, they are making the same spurious claims here as in every other state that they visited.  Luckily, the Illinois house has not bought into the medical malpractice reform movement's argument, with the overwhelming defeat of the most recent medical malpractice reform bill by a 37-71 vote. A quick rundown of the lies being propagated by the malpractice insurance industry follows.  (Note: others call them myths, we think the intent implicit in the word "lie" is appropriate because the malpractice insurance industry has more than demonstrated a conscious effort to mislead)

        Lie #1.  Malpractice Reform (i.e., liability caps) will Cut Malpractice Premiums.  Fact:  In every state that has enacted damage caps, malpractices premiums have gone up.  In most states that enact damage caps, malpractice premiums have continued to increase faster than before caps were enacted, and faster than in states where no caps have been instituted.  Using Texas as an example, the year after malpractice reform was instituted, every major malpractice insurer in the state claimed to need a double digit rate increase.  The only state where malpractice premiums have ever decreased is California.  The California decrease only happened after a ballot referendum required an across the board cut in premiums.  Not only has the Government Accounting Office stated that a liability caps will have no effect on malpractice premiums, but insurance industry executives when under oath before legislators have admitted the same.  

        Lie #2. Doctors are leaving the state of (Your state here) because of excessive malpractice premiums.  Fact:  Malpractice insurers use this argument in every state, so the logical question that follows is, "Where are all the doctors going?  Mexico?  Canada?"  Yet another spurious argument by malpractice insurers not capable of being substantiated by the numbers.  In fact, every time this argument is made a check of the records reveals not only an increase in the number of doctors in a targeted state, but an upward trend.  

        Lie #3. A cap on non-economic damages (i.e., pain and suffering, loss of a normal life, loss of consortium, etc...) does not hurt anyone.  Fact:Malpractice insurers know that bringing malpractice lawsuits are extremely expensive.  Part of the reason they are expensive is that doctors who certify cases or testify at trial (and are subject to a discovery deposition) charge hundreds or even thousands of dollars an hour in expert witness fees.  These fees are not recoverable by the prevailing plaintiff and assuming the jury's award of economic damages is just sufficient to cover the damages that have been and will be incurred by the malpractice victim, pain and suffering awards are used to cover the non-recoverable costs of litigation (expert witness fees, deposition fees, attorney fees, etc...).  Since these necessary fees are often quite substantial, in order to make a victim whole, or as whole as a monetary award can make an injured person, large non-economic damage awards are necessary to fully compensate victims.  Perhaps the most devious part of the plan to cap non-economic damages (or in some states, a cap on total damages) is the knowledge that attorneys will not take medical malpractice cases if there is little chance of obtaining a recovery large enough to justify the risk involved.  Those who support caps on attorney fees need to realize that it is almost always the plaintiff's attorney who absorbs the costs incurred in an unsuccessful case.  If you want a civilized society, which requires access to the courts for all (not just those who can advance the costs of litigation), a contingent fee system where plaintiff attorneys can make substantial sums of money on their successful cases is necessary.  (Note: CLRC does not endorse frivolous lawsuits, but just because you lose does not mean the case was frivolous.)

        Lie #4. Malpractice premiums are rising exponentially because of exponentially increasing jury verdicts.  Fact:  Jury verdicts do increase over time.  So does the price of health care services necessitated by the defendants' malpractice.  There is no evidence that juries have given up their duty to fairly compensate injured patients for their injuries, and have started beating up doctors for no reason.  1) 80% of all jury verdicts are in the health care provider's favor.  2) Surveys continue to show that juries have great respect for doctors on the whole. 3) The same surveys show that the insurance industry's inundating of consumers with messages of frivolous and/or excessive verdicts has caused jurors to be skeptical of plaintiffs claims.  Further, this argument ignores the fact that post trial motions (e.g., judgment notwithstanding the verdict, new trial, remittitur (judge on their own reduces amount of jury verdict before entering judgment), etc...), and appeals are available to doctors who have had sums awarded against them that appear to be excessive.  This fact as well as many others never get covered by the "mainstream" press.  These omissions might be funny if it were not an intentional omission on the part of the "mainstream" press.  The press only reports the jury verdict, they never report what was actually paid.  The insurance industry then takes these headlines to regulators to justify rate increases and to the public and legislators to obtain caps on damages.
        
        Lie #5. More lawsuits are being filed each year.  Fact:  Duh!  More people = more patients = more opportunities for error = more error = more lawsuits.  Despite this obvious logic, the number of lawsuits has not increased astronomically, and depending on the year, the number of suits has decreased.  Further, as health insurers cut back, through both legal and illegal means, on reimbursements of patients' medical bills, doctors are forced to see more patients in a shorter amount of time just to prevent their practices from losing money.  Naturally, the more a doctor has to rush through a visit with a patient, the greater the opportunity for a misdiagnosis, and as a result, malpractice.  It strikes us as amazing that while doctors are being squeezed by health and malpractice insurers (industries which have skyrocketing profits despite poor investments), doctors groups have chosen to strike out at those who help those injured by negligent doctors.  One would think that the medical profession would want to drive down malpractice premiums by getting rid of the bad doctors (5%) who are responsible for the rest of the profession's increasing malpractice premiums.  Studies show that in the five percent of doctors getting sued for malpractice are doctors who get sued repeatedly.  The fact that very few doctors get removed from the practice of medicine each year is evidence that the profession is not policing itself.

        We think the public needs to be made aware of the deceit being perpetrated on them by the malpractice reform industry.  It does not take a bright person to look at the performance of these insurance companies to realize that there is a great disparity between insurer's financial statements to shareholders and their reports to regulators "justifying" rate increases.  Its time for doctors, patients, and responsible attorneys to respond to the real cause of the health care financing/malpractice crisis in this country by clamping down on the rampant abuses of the malpractice and health insurance industries.