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CJ&D Briefing Book: The Truth About Medical Malpractice Lawsuits

The Center for Justice and Democracy recently released an incredibly insightful new report that seeks to provide clear summaries of all of the hot-button issues related to medical malpractice. That includes analysis of the actual status of med mal suits, the effect of tort reform laws, the state of malpractice insurance, and the actual state of patient safety. We will likely discuss the findings of each in turn over the next week or two.

Illinois Medical Malpractice Lawsuits–Not “Frivolous”
Perhaps the most important baseline issue to discuss are the actual merits of the civil lawsuits that are currently filed alleging medical negligence. Due to years of misinformation campaigns, there is an assumption among some that most medical malpractice lawsuits are without merit–frivolous. This is a helpful talking point for insurance companies and big medical interests, but it simply does not mesh with reality.

The truth is actually the exact opposite. Not only are medical malpractice cases not frivolous, but the vast majority of patients who are hurt by medical errors do not actually file lawsuits. One author put it more succinctly, “There are far more cases of medical malpractice than medical malpractice litigation.”

For example, a few years ago a team of researchers scoured hundreds of thousands of medical records from a few hospitals. They found about 280 cases where malpractice seemed obvious–even as written in the patients own records. If it is true that patients file suit at any hint of error, then one might expect most of those 280 patients to have filed a civil lawsuit. Did they? No. Only 8–about 2.8%–actually filed a lawsuit. That low rate has been found in various studies over and over. The bottom line is that most victims of medical errors do not use the civil justice system for redress. Claims to the contrary do not stand up to actual scrutiny.

Downward Trend
Not only have malpractice lawsuits only represented a small fraction of likely medical errors, the trend is clear–less legal accountability. For example, a report from 2011 by the National Center for State Courts found that these cases “represented well under two percent of all incoming civil cases, and less than eight percent of all incoming tort cases.” The attention that these cases receive in public debate dwarfs the actual attention the cases receive in the civil justice system, because there are not that many of them—and there are fewer every day.

Public Citizen reported this year, after an analysis of data from the National Practitioner Data Bank, that payments following medical malpractice lawsuits were lower this year than ever before. There were slightly more than 3,000 payout for deaths related to negligence in 2011. This should be compared with estimates of anywhere from 50,000 to 100,000 deaths caused by medical errors each year. Even taking the lowest estimates, this means that anywhere from 93% to 98% of families with loved ones killed by medical errors do not receive any redress.

The bottom line is there is nothing even, nor has there ever been, anything close to a med mal lawsuit “epidemic.” If anything, the epidemic is in the overwhelming majority of cases where harmful errors result in zero accountability.

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