There are two schools of thought about medical malpractice litigation and they pretty much align with the opposing sides of the bar. One is that the threat of a medical malpractice lawsuit emboldens the practice of defensive medicine which proliferates health care and insurance costs and drives providers out of litigious communities. The other side is that the specter of litigation reduces medical error by holding health care providers accountable for their negligence that can result in serious injury or death to their patients.
Where does the truth lie? I would argue, somewhere to the left of the middle.
Few people know there are very strict legal requirements imposed upon plaintiffs before they can even ink a complaint against a health care provider. First, an attorney must be convinced they have a case. A plaintiff’s attorney must conduct a detailed interview of the plaintiff and possibly their loved ones and carefully analyze the medical records. If, after this preliminary investigation it looks like negligence may have been involved and the damages are significant, then the attorney must submit the case and pay for a medical expert for review. This is an expensive process involving thousands of dollars that plaintiff’s counsel takes the risk of having to pay usually without reimbursement.
If the medical expert determines within a reasonable degree of medical certainty negligence occurred and the plaintiff was injured as a result of the negligence, then, and only then under Illinois law, may the plaintiff bring a lawsuit that includes a written report with the certification of the medical expert the case has merit to conduct further investigation. This scenario is in stark contrast to the public image of medical malpractice lawsuits being frivolously filed by money-hungry plaintiffs and their lawyers out to scrutinize every medical judgment that leads to a disappointing or unexpected outcome. It makes no economic sense for a lawyer to file a case he or she will not win. The crazy stories one hears about frivolous lawsuits in the news and elsewhere is the exception not the rule.
Once the case is filed then the expenses really start to mount: years’ worth of medical records, medical expert fees, deposition transcripts and all of the other necessities to build a strong case. It is an uphill battle. Less than 10% of medical malpractice cases make it to trial and the majority of those that do result in defense verdicts.
Here is what does not make the headlines. The rate of paid medical malpractice cases declined nearly 56% between 1992 and 2014. The best explanations offered for this significant decline were the improvement of patient care and best practices, like checklists, and medical claims practices promoting transparency. The truth is a system that challenges norms and mediocrity, implements checks and balances, recognizes there will always be human error and provides for a fair recovery to injured victims of that error, is the absolute best we can hope for. Plaintiff’s attorneys like me are avid gatekeepers of this system.