It is with great pride and satisfaction that we post our 2,000th consecutive daily blog today. While our accomplishment is a major milestone in our mission to assist victims of medical malpractice gain knowledge and assistance in achieving fairness and justice for the harms they suffered, it is sobering to realize that in the time it took us to publish 2,000 daily blogs, over 2.4 million people in the United States have died as a result of medical errors, at a cost of more than $17 billion to the U.S. healthcare system in 2008 alone. That’s over 1,000 preventable deaths per day due to medical errors. Source
Despite such devastation cast upon unsuspecting and innocent victims of medical negligence that forever disrupts and changes their lives, the massive health care industry in the United States continues to press its well-financed and organized efforts to vastly restrict the ability of medical malpractice victims to seek and obtain fair and adequate compensation from those responsible for the harms they suffered. The deck is stacked against the victims of medical malpractice and in favor of the health care industry: the Doctors Company, which is the largest physician-owned medical malpractice insurance company in the United States, boasts that it has “$4.3 billion in assets and $1.8 billion in member surplus” and that it provides its members with “the industry’s most aggressive claims defense.” The Doctors Company proudly acknowledges that its physician-founders were responsible for “leading the charge for comprehensive tort reform.” Source The Doctors Company’s Political Action Committee, DOCPAC, “exists to establish and protect medical liability reforms, and to help our insureds to become involved in grassroots political activity. We publish bulletins, reports, and alerts to our insureds concerning critical political issues and developments. We also raise money for political action in support of medical liability reform at the state and national level.” Source
Medical malpractice victims, on the other hand, are a disparate group without the national organization and financial resources available to counterbalance the massive lobbying efforts of the health care industry on the federal, state, and local levels that seek to enact laws that place their privileged profits above the harms inflicted on medical malpractice victims and their families. The only champions fighting for victims of medical malpractice are the medical malpractice lawyers who are willing and able to fight the health care industry on a case-by-case basis, seeking to obtain fair and adequate compensation for their clients. They, and their clients, face mounting obstacles, including irrational limits (caps) on the amount of compensation they may receive for their noneconomic damages, such as pain, suffering, and mental anguish, as exemplified by the $250,000 cap on noneconomic damages in both California and Texas (who would consider $250,000 to be sufficient compensation for the minor children of a young mother who lost her life due to medical negligence, or for the parents of a minor child who died unexpectedly because a physician failed to provide necessary care, or for a 20-year-old woman who must live the rest of her life in constant pain and in a wheelchair because her physician negligently failed to order a simple medical test that would have diagnosed her serious medical condition and would have prevented her paraplegia?).
Many state legislatures, and their approving appellate courts, have subverted their state constitutions that provide for the right of the people to have their grievances determined by a jury of their peers, often by employing twisted, perverse, and questionable logic. For instance, the Nevada Supreme Court determined that the Nevada cap on noneconomic damages in Nevada medical malpractice cases does not violate the Nevada Constitution, which states, “[t]he right of trial by Jury shall be secured to all and remain inviolate forever.” Nev. Const. art. 1, § 3. Nonetheless, the Nevada Supreme Court stated that in order for a statute to violate the right to trial by jury, a statute must make the right practically unavailable – the correct standard for evaluating whether a statute unconstitutionally restricts the right to a jury trial is that the right must not be burdened by the imposition of onerous conditions, restrictions or regulations which would make the right practically unavailable. The Nevada Supreme Court held that NRS 41A.035’s cap does not interfere with the jury’s factual findings because it takes effect only after the jury has made its assessment of damages, and thus, it does not implicate a plaintiff’s right to a jury trial. Source
Many states have enacted so-called medical malpractice reforms that elevate the financial interests of medical providers who unnecessarily harmed their patients over the withering rights of innocent victims of medical negligence who cannot obtain fair and just compensation because of legislative barriers that cannot be breached. Despite such one-sided protectionism that insulates bad medical care providers, medical malpractice payouts throughout the United States increased in each of the three consecutive years ending in 2015, which may indicate that medical negligence is not just a continuing problem in the United States, despite medical malpractice claim reforms, but an increasing problem, causing more harm to more people. Source
Are Medical Malpractice Tort Reforms Necessary Or Desirable?
A compelling argument can be made that medical malpractice tort reforms that harm victims of medical malpractice were never necessary and are unnecessary now.
The health care industry first began pushing for medical malpractice tort reforms many decades ago in order to selfishly protect the financial interests of physicians and other health care providers, espousing the argument that ever-increasing medical malpractice insurance premiums would soon make it impossible for physicians to afford to continue to practice medicine and that physicians would flee the health care field for other employment opportunities (do you know any physicians who quit their medical practices and became plumbers or electricians?).
If there is any shortage of physicians in the United States, it is not due to medical malpractice claims. In the 1980s and early 1990s, it was estimated that there would be a surplus of 75,000 physicians by 2000 and a surplus of 100,000 physicians by 2020. In 1997, based on erroneous projections regarding the number of physicians practicing in the United States, legislation was passed that capped the number of residency positions supported by Medicare. The main restriction on increasing the number of physicians in the United States is the lack of enough residency training positions available throughout the United States — new medical school graduates need to obtain residency training in order for them to become licensed and to engage in the practice of medicine. As a result, it is predicted that the supply of physicians in the United States will remain flat for the foreseeable future due to the lack of enough residency training programs. If residency training programs had not been capped in 1997 and had the annual growth in the number of residency positions been allowed to increase at its historical rate, then there would be no present shortage of physicians in the United States. Source
The health care industry complemented their “sky is falling” campaign with an equally effective but disingenuous campaign that argued that “frivolous” medical malpractice claims were rampant and would result in patients being unable to obtain appropriate medical care when necessary (a fear campaign that focused on consumers of medical services).
However, the health care industry was never required to provide data to support their argument for medical malpractice tort reforms based on medical malpractice claims, and they have never done so. In fact, the data contradicts their argument and supports a conclusion that there never was a health care crisis caused by medical malpractice claims. Medical malpractice insurance companies have been enjoying record profits for many years: the average profit margin for the top 10 medical malpractice insurance companies was two times as high as the average profit margin of the 50 most profitable Fortune 500 companies (only one Fortune 500 company had a profit margin that matched the top 10 medical malpractice insurance companies). In 2010, ProAssurance, one of the country’s largest medical malpractice insurance providers, enjoyed a profit margin (defined as profit as a percentage of revenue) of over 100% — the average profit margin for the top ten medical malpractice insurance companies was a whopping 44.6% in 2010. The Doctors Company, which continues to swallow up smaller medical malpractice insurance companies, reported that it had a 50% profit margin in 2006. And in 2010, when The Doctors Company reviewed its actual losses during the prior four-year period, The Doctors Company determined that its original estimate of losses in the amount of $286 million was too high and lowered its estimated losses by 34%, to $188 million. Therefore, for 2006, The Doctors Company did not have a profit margin of 50% but rather a profit margin of almost 70%. Source
Do doctors engage in so-called defensive medicine due to their fear of being sued for medical malpractice (another argument for medical malpractice tort reforms promoted by the health care industry)? The results of a study conducted by the Center for Studying Health System Change that was funded by the National Institute for Health Care Reform and which appeared in the August 2013 edition of the journal Health Affairs found that office-based physicians who reported a high level of medical malpractice concern were most likely to engage in practices that would be considered defensive medicine when diagnosing patients who visited their offices with new complaints of chest pain, headache, or lower back pain, and that it did not matter whether the states in which they practiced had enacted medical malpractice tort reforms or the extent of the reforms. The study found that when the researchers compared the physicians’ level of medical malpractice concern with objective indicators of malpractice liability risk at the state level, such as caps on noneconomic damages in medical malpractice cases, there were no consistent relationships. Source
Despite the many obstacles placed in the path of medical malpractice victims and their medical malpractice lawyers that make it difficult for the lawyers to seek and obtain justice for their clients, we are proud of the hard-working, dedicated, smart medical malpractice lawyers throughout the United States who continue to push forward with their efforts to obtain fair compensation for their clients despite the overpowering, focused efforts of the health care industry to deprive the innocent victims of medical malpractice from receiving just compensation for the harms they suffered.
We look forward to continuing to publish our daily blog so that every past, present, and future victim of medical malpractice in the United States, and anyone else interested in current and developing issues involving medical malpractice, have a place to read about and research relevant and important medical malpractice issues (each of our over 2,000 medical malpractice blog posts is fully searchable by word, phrase, or subject matter). It is our desire that one day in the future, medical malpractice incidents and the resulting tragic harms they cause will be substantially reduced so that few people suffer the devastation that medical malpractice inflicts on unsuspecting patients. However, our hope for a bright future for patients seeking necessary medical care in the United States is dampened by our knowledge that the massive and well-financed health care industry in the United States has every incentive to continue its efforts to promote medical malpractice tort reform in every U.S. state, which subverts our collective sense of fairness and justice, so that physicians and other health care providers are insulated from accepting their full responsibility for the harms they cause to their patients when they fail to provide adequate medical care.
If you or a loved one were harmed due to possible medical malpractice in the United States, you should promptly find a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to be connected with medical malpractice attorneys who may assist you.
Turn to us when you don’t know where to turn.