Posted by Bill Sandweg on 14 March 2016.
“Frivolous medical malpractice claims.” This is what the doctors, insurers and their fellow travelers would have you believe is the root cause of all evil in the medical profession. It forces the poor doctors to unethically perform (and be paid big money for) tests you do not need. It is the major reason medical costs are so high. It is keeping communities from having the doctors they deserve. It also causes bad breath and male pattern baldness.
In actual fact, there is a lot of medical negligence out there but most of its victims never make a claim or bring suit. This fact has been recognized time and time again. The California Medical Insurance Feasibility Study in 1974 found that for every 10 injuries which were caused by negligent medical treatment, only one resulted in a claim. Most other studies have found a far lower rate of patient claims. As has also been remarked upon over and over again, a competent lawyer would have to be crazy to take on a frivolous medical malpractice case. For almost every med mal case we file here at Sandweg & Ager, we put in at least $100,000 worth of time and write checks for at least $50,000 for expert witness fees and the other costs associated with these cases. If we are not successful for our clients, we don’t get paid for our time or reimbursed for the costs we have advanced. It only takes a couple of failed cases to bankrupt even the most successful law firm. For the sake of the clients, for our sake and even for the sake of the defendant doctor, we undertake a very thorough investigation into the facts and circumstances of a potential claim and only proceed if there is strong evidence of medical negligence and a good likelihood of a favorable jury verdict, should the matter go to trial. I know from over 45 years of experience that most other competent medical malpractice lawyers are similarly careful about the cases they take.
It is also a proven fact that the costs associated with malpractice claims, which include settlements, verdicts and defense costs, are only a tiny fraction of the money spent on health care in this country on an annual basis. A 2010 study out of the Harvard School of Public Health concluded that the costs associated with medical malpractice claims were 2.4% of health care spending in 2008 but reached that number only by including $45.6 billion in what it described as spending on “defensive medicine.” There is widespread disagreement about whether “defensive medicine” exists and, to the extent it does, whether its cost can be calculated. If the amount attributed to “defensive medicine” is removed, the remainder, which is clearly related to medical malpractice claims, is less that 1/2 of 1% of total health care spending.
Even if one were to accept the Harvard figure of 2.4%, this represents the most that could be saved if there were magically no more medical malpractice. Of course, no one can wave a magic wand and eliminate all malpractice. Even under the most aggressive “tort reform” proposals, malpractice claims will remain so the savings would be only a tiny fraction of medical spending and this saving would come at the expense of depriving legitimately injured people of the justice they deserve. Even if all malpractice claims were outlawed, malpractice would remain and some of the money which is now included as malpractice spending would have to be spent by Medicare or Medicaid or by health insurers to pay for treatment made necessary by medical malpractice.
Many years ago, doctors told their patients that putting leeches on their bodies would lead to better health. After they found that leeches really didn’t work, they started selling snake oil as the cure for all your ills. Many of today’s doctors and their insurers are still selling snake oil in the form of complaints about “frivolous medical malpractice suits.” Don’t be one of the rubes who buys it.
