Northern Virginia and Washington D.C. Medical Malpractice and Personal Injury Lawyers’ Blog

Is there too much medical malpractice litigation or is there too much medical malpractice?

In his book, "The Medical Malpractice Myth," Tom Baker seeks to answer the question whether there is too much medical malpractice litigation in the United States or whether there is too much medical malpractice. His answer may surprise you. Tom Baker examines every relevant study performed in the last thirty years on the issue of medical malpractice. Most of these studies were conducted by health care providers, including physicians, hospitals, and nurses. Based upon those studies and other data he has gathered on his own, Tom Baker concludes that there is an epidemic of medical malpractice in the United States. His figures are staggering. Doctors and hospitals injure about one out of every twenty-five hospital patients. Negligence is the cause of injury in about one of every four of those cases, meaning that one patient in every 100 is the victim of medical malpractice. Of note, more people are killed by medical malpractice than are killed by auto and workplace accidents combined. Other significant findings include:

* Compared to the amount of medical malpractice, there is very little medical malpractice litigation. The evidence shows that very few victims of medical malpractice actually file lawsuits. Data show that there are approximately seven proven medical malpractice injuries for every one medical malpractice case that is filed.

* The number of medical malpractice lawsuits is not growing. Similarly, the overall size of the lawsuit settlements and verdicts is not increasing, particualry once the rising medical care costs for treating medical malpractice victims is taken into account.

* Medical malpractice lawsuits and jury verdicts are not to blame for the recent medical malpractice insurance crisis. In reality, the culprit for the insurance crisis is the boom-and-bust cycle in the insurance industry that has been an inherent part of the insurance business for over a century.

* Medical malpractice lawsuits are not depriving Americans of access to health care. The evidence shows that the costs associated with medical malpractice litigation are less than 1% of the entire cost of the health care system.

* Medical malpractice lawsuits actually do good. An example of this is the American Society of Anesthesiologist's closed case study of all past medical malpractice claims filed involving anesthesia. This study led to significant changes in how anesthesia was practiced in the United States. For example, better anesthesia equipment was developed and new practice guidelines were implemented. The end result was better health care for patients and lower insurance premiums for anesthesiologists.

* Medical malpractice insurance premiums for health care providers is not as high as commonly reported. The average insurance premium paid per doctor is less than $12,000.

Virginia Supreme Court Decisions A Big Victory For Plaintiffs

Last week, the Virignia Supreme Court released its decision in Centra Health, Inc. v. Mullins.  The end result is a big victory for plaintiffs in death cases where the cause of death is contested.

The Central Health case resolved a long-standing issue under Virginia law -- whether a plaintiff has the right to submit both a survival action and a wrongful death action to a jury for resolution at the same time.  Plaintiff's lawyers have long advocated for this right in order to prevent the injustice of picking the wrong cause of action to submit to a jury, and losing a case, not because the defendant did not negligently cause harm, but because the wrong cause of action was chosen. 

Until the Central Health decision, a plaintiff's nightmare scenario occurs under the following facts.  The defendant negligently injures a person and everyone agrees that the defendant was indeed negligent in injuring the other person.  The injured person then dies some time after the initial injury.  The plaintiff and defendant disagree whether the defendant's negligence actually caused the injured person to die, or whether the injured person died from some other cause.  Based upon these facts, two different causes of action were available to the plaintiff - (1) a wrongful death claim in which the plaintiff alleged that the defendant caused the death of the injured person' or (2) a survival action claim inwihch the plaintiff alleged that the defendant caused injury to the injured person but did not cause death.  Prior to Central Health, some trial courts were requiring the plaintiff to elect only one of the two claims to submit to a jury.  The injustice arose when the plaintiff elected the wrongful death claim, but lost at trial because the jury felt the defendant negligently injured the injured person but did not cause that person's death; or when the plaintiff elected the survival action claim, but lost at trial because the jury felt the defendant did negligently cause the injured person's death.

In Central Health, the Virginia Supreme Court recognized the right of plaintiffs to submit both claims to the jury, and allow the jury to decide which of the two claims was the right one under the evidence presented.  Under this decision, plaintiffs no longer face the prospect of losing a case where the defendant is admittedly negligent on the grounds that the wrong type of claim was elected.