During this time of intense health care reform in Congress — with the House having passed a health care reform bill without major draconian medical liability reform, and the Senate soon to begin its debate over a bill — it’s time for experienced personal injury lawyers to separate truth from fiction when it comes to the relationship between medical malpractice laws, insurance and the practice of medicine. This month, the American Association for Justice (AAJ) released a recent report titled “Five Myths of Medical Negligence.” The bottom line of this report is that none of the proposals for medical malpractice reform will lower the cost of health care, prevent “frivolous” lawsuits, or improve the practice of medicine, including patient safety.
Instead, such “tort reform” simply distract attention away from the true source of rising health care costs — the insurance industry. More fundamentally, though, the question really is why “patient safety” is taking a back seat to “cost savings.” This is especially true considering that patient safety is key to lowering health costs.
This week, our Chicago medical malpractice attorneys will present these five myths, one at a time, so that the public understands the issues and the facts.
A focus solely on money, though, ignores the issue of patient safety. And as the AAJ report demonstrates, patient safety takes a back seat to “cost savings” when patient safety is key to achieving cost savings.
Before delving into the details and separating fact from fiction, it is important to define what is meant by “medical malpractice” or “medical negligence.” Medical malpractice (or negligence) is when a licensed medical professional, such as a physician or nurse, deviates from the “appropriate standard of care,” resulting in injury or death to the patient. Malpractice covers a wide-range of issues, from failure to obtain consent before a procedure to hypoxia-induced Cerebral Palsy to death, and many areas in between. Therefore, it is important to have an experienced personal injury and medical malpractice attorney review your case if you suspect malpractice occurred.
Now it is time to address the five myths of medical malpractice, which will be presented over the course of the week.
Medical Negligence Myth #1: There are Too Many “Frivolous Malpractice” Lawsuits
This is a common complaint levied by right-wing politicians (backed by the insurance lobbyists) and some from the medical industry, including the American Medical Association lobby. It is important to define what they mean by “frivolous.”
In a legal context, a “frivolous” lawsuit is one that is filed without legal merit. Legal merit is determined by what is called “due diligence,” or a person and his or her lawyer’s duty to investigate the the facts and law before filing a lawsuit. Lawyers are ethically and legally bound (by both state and federal law) to only pursue lawsuits filed in “good faith.” If a lawyer files a “frivolous” lawsuit, that lawyer can be sanctioned by a judge under both state and federal law.
If the threat of sanction was not enough of a deterrent, several states, including Illinois have added extra protections to prevent frivolous medical malpractice lawsuits. In Illinois, a plaintiff who files a medical negligence lawsuit must attach a sworn affidavit from a medical expert in the appropriate field of specialty (typically, practicing doctor) stating that the doctor believes a meritorious action exists against the defendant doctors/hospitals for medical malpractice. Therefore, in most lawsuits criticized as “frivolous,” a medical professional has stated his or her belief that the lawsuit has merit.
This myth has been debunked by empirical evidence. According to the Institute of Medicine (IOM), an independent nonprofit organization that “serves as an adviser to the nation to improve health,” 98,000 people a year die from preventable medical errors. If a substantial number of people really were filing frivolous medical malpractice lawsuits, then the majority, if not all, 98,000 people killed each year due to preventable medical errors would file a claim. However, the AAJ report cites a Harvard study showing that only one in eight people injured as a result of medical negligence actually files a malpractice lawsuit.
The bottom line is that it is not in either the injured plaintiff’s interest or the personal injury lawyer’s interest (who typically receives compensation only if the lawsuit is successful) to file a “frivolous” medical negligence lawsuit. There are stringent state and federal laws that prevent such lawsuits from being filed, including the requirement of a medical professional’s certificate of merit. Further, the empirical evidence shows that the number of malpractice lawsuits being filed, as compared to the number of actual cases of medical negligence, is strikingly small.
At Passen & Powell, our Chicago personal injury attorneys are committed to preserving access to the civil justice system for families and individual victims of medical negligence. For a free consultation with one of our lawyers, call us at (312) 527-4500.