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What is this?
The lawsuit legal system is working
Published Monday, November 30, 2009
In 2002, Mississippi passed legislation to cap medical malpractice non-economic awards at $500,000, thinking that this would stop frivolous lawsuits. However, the problem at that time was that the law allowed doctors, who prescribed FDA approved drugs, to be sued along with the pharmaceutical companies. The purpose of suing the doctor was only to keep cases in state court venues in order to sue the drug companies here. However, this law was subsequently repealed which then dropped the medical malpractice rate by over 90 percent.
According to a Harvard study, only one in eight instances of medical negligence ever becomes a malpractice lawsuit. There have been numerous studies on frivolous lawsuits. Harvard University School of Public Health found in a study that 97 percent of all malpractice claims are meritorious. Meritorious means that the claims were brought after an injury and with a good faith basis in believing that a doctor committed medical negligence.
Subsequent to this study, “The New England Journal of Medicine” conducted further studies in 2006 into frivolous medical malpractice suits and determined that 75 percent of all malpractice lawsuits filed were justified and deserved payment. The article in The Journal stated: “The malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter.” The Journal further stated that the: “portrait of a malpractice system stricken with frivolous lawsuits is overblown.”
It has also been argued that prior to tort reform in 2002, doctors were leaving Mississippi in mass numbers. However, the AMA has reported that in the years of 1998 to 2002, the years before tort reform, the number of doctors in Mississippi actually increased by 14 percent. Ironically since tort reform passed in 2002, the number of doctors in Mississippi has increased by only 2.4 percent.
The next argument for tort reform and caps was that they greatly reduce the overall costs of healthcare and that without them healthcare costs were going through the roof. However, the Congressional Budget Office has flatly rejected this argument as recently as October of 2009. The CBO did an analysis assuming a hypothetical of a $250,000, cap on all medical malpractice across the country. Based upon the analysis, they found as follows: “CBO now estimates on the basis of an analysis incorporating the result of recent research, that if a package of proposals ($250,000 cap) such as that described above were enacted, it would reduce the total national healthcare expenditure by about 0.5 percent.” In other words if national tort reform was passed and this cap above were adopted, then you would only realize one-half of 1 percent savings off your doctor and hospital bills.
However, CBO further reported that all malpractice costs including lawsuits and settlements accounted for slightly more than 1 percent of overall healthcare. It is clear from the analysis and statistics above that lawsuits and litigation play a very minor role in overall healthcare expenditures. The misinformation that attorneys and lawsuits are creating this huge burden on state and national healthcare is nothing but wild exaggeration.
The Institute of Medicine, which is a physician’s organization, reported in 1999 that medical malpractice accounts for between 44,000 up to 98,000 deaths a year in this country. The IOM has never retracted these statistics.
As shown from the numbers above, medical malpractice has been a real problem. However, Reader’s Digest reported recently that 43 percent of all doctors in the country refuse to even talk about medical malpractice committed by their colleagues when they observe it out of fear of retribution. Hospitals are also reluctant to report negligence due to the fact that doctors are admitters to their business facilities. Thus the legal system is truly the only system in this country that can deal with medical negligence and is its best check and balance. The public has been led to believe that lawsuits and lawyers are the problem and not the solution when the opposite is just the case.
Frivolous lawsuits occasionally slip through the legal system, and the overwhelming number of attorneys detest it. But the legal system works overall.
Lucien C. “SAM” GWIN III is Natchez attorney and has represented hospitals, doctors and injured plaintiffs in medical malpractice cases.
Comments
Posted by ucantfixstupid (anonymous) on November 30, 2009 at 6:36 a.m. (Suggest removal)
AMEN...... Insurance and Doctors put us here. Paitent's rights will never be the issue, the Industries wrong has too much money backing them. Therefore put the blame on the attorneys and their clients for seeking justice and the rights of the harmed....good article Mr Gwin, I stand in your corner.
Posted by onarant (anonymous) on November 30, 2009 at 9:24 a.m. (Suggest removal)
Tort reform is only intended to reduce the ridiculous punitive, or exemplary damages that a jury sometimes award. The plaintiff is still entitled to full compensation for harm, also known by the latin phrase "restitutio in integrum"(restoration to original state).
My real question is, if the attorneys are so concerned about just compensation to victims, why do you always end up pocketing most of the award?
Posted by Yeahuhuh (anonymous) on November 30, 2009 at 10:32 a.m. (Suggest removal)
Although not a fan of the high costs of legal representation, perhaps the most obvious cause for the large $$$ percentage of judgments that go to attorneys is the fact that in order to win they must fight the attorneys of doctors and insurance corporations. And everybody knows how lawyers who are protecting a client's money in the bank can string things out FOREVER as a legal tactic.
The answer to ornarant's question might well be that attorneys do not take an oath that obilgates them to healing the ill but doctors do and the money DOCTORS charge (and the procedures they require) has made it into a circus of self-interest. We can face financial ruin from minor illnesses, and when charges are made but malpractice is evident then why would ANYONE accuse lawyers of somehow being less than lofty in their concerns?
Thank you very much Sam Gwin for this very informative look into the reality of this matter.
The distance between what doctors' advocates have claimed and the real effects of the law in Mississippi are impressive.
90% of the time, it seems that government policy will be to give special interest legal rights to a group with the money to lobby and do it at the expense of the lowest rung of the legal ladder -- the citizen.
With doctors seemingly inclined to require signed statements from prospective patients that they have never been involved in a medical lawsuit -- and Sam's facts that so many of them have merit and so few medical mistakes make it to lawsuit -- one might wonder about the accuracy of the ND's headline.
Posted by JEngdahlJ (anonymous) on November 30, 2009 at 11:09 a.m. (Suggest removal)
Today's medical professional liability system is too adversarial and too expensive. There are alternatives. More at http://www.healthcaretownhall.com/?p=177...
Posted by beammeupscotty (anonymous) on November 30, 2009 at 1:24 p.m. (Suggest removal)
You left out the main bloodsucker in this problem, the insurance providers. Doctors pay thru the nose for coverage and as soon as a lawyer gets involved, right or wrong goes out the window.
Posted by sandyman7 (anonymous) on November 30, 2009 at 1:53 p.m. (Suggest removal)
MMMMMMM and of course the lawyers representing the little guys( you and me)are so in favor of us they only charge us 40 to 50% of any settlement we should get!!!!!!!!!
Posted by onarant (anonymous) on November 30, 2009 at 3:53 p.m. (Suggest removal)
beammeupscotty;
You are right about the Insurance companies being bloodsuckers also. Next to congress, I consider the insurance industry as the second biggest crime syndicate in the country.
What I find funny is the people who think capitalism is bad and should be abolished, have no problem with defending the current tort liability system we have, where some attorneys get very wealthy off the backs of the people they represent, not to mention the folks that pay insurance premiums.
I guess that is not for small minds like me to ponder though.
Posted by Torch (anonymous) on November 30, 2009 at 4:42 p.m. (Suggest removal)
Wow, sounds like we have the wrong law firm representing us. What is malpractice?
Law. failure of a professional person, as a physician or lawyer, to render proper services through reprehensible ignorance or negligence or through criminal intent, esp. when injury or loss follows.
This is not what 95% of Drs. are being sued for today. Drs. are being sued for bad out comes not malpractice. You can find another Dr. that can look at the information after it has occured and say that the Dr. missed this or didn't do that. It is easy to find fault with any situation after the fact. Hind sight is 20/20.
I guarantee you if lawyers were being sued for loosing cases on the scale that physicians were being sued, they would think differently. I could get another attorney to go over the trial with a fine tooth comb after the fact and inform me of everything that my attorney should have done or didn't do, I could come up with a reason to sue them. And that is after they have had years to prepare for a trial. Drs. literaly have seconds to make life and death decisions. Patients only have to go to an attorney and nine times out of ten, they already have Drs. on the payroll that are willing to come and swear that the Dr. was a quack and should be hung for the kind of medicine that they have been providing. Even though the Dr. has taken care of thousands of patients for years.
Posted by getrealnatchez (anonymous) on November 30, 2009 at 5:24 p.m. (Suggest removal)
Great comments Torch.
Posted by happyreader (anonymous) on December 4, 2009 at 9:53 p.m. (Suggest removal)
You said it for me, Torch.
Posted by imnms017 (anonymous) on January 18, 2010 at 11:55 a.m. (Suggest removal)
This attorney (need I state the conflict of interests?) forgets to mention something in this piece, and it makes everything he says very irrelevant to Mississippi's tort reform.
He forgets to mention that these studies are looking at malpractice in the United States as a whole. They aren't analyzing Mississippi's legal system. If they were to zoom in on Mississippi's issues, the picture would be quite different. In fact, Mr. Gwin doesn't mention any of the systems that rate states for their attractiveness to physicians. Mississippi rates quite low, actually.
Mr. Gwin is an attorney, not a scientist, and I forgive him for that. Nevertheless, when one cites a scientific study, one has the responsibility to use that citation responsibly, (i.e. not to misrepresent what the authors actually said). Read: the authors did not say that the legal system in Mississippi is working as planned. They said that the system in the United States works overall (and based on what Mr. Gwin wrote here, about 75% of the time, given what one study said). I wonder how much of the 25% of suits that are frivolous actually come out of Mississippi. That would be a study that is relevant to Mr. Gwin's cause. By the way, as a personal injury what exactly is Mr. Gwin's cause, other than suing doctors to win his clients large cash settlements?
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