19Nov
Posted by Rachel Harmon in Medical Malpractice Law
Our Indiana medical malpractice attorneys separate medical malpractice myths and reality.

No Fees Unless We Recover

It is understood that medicine is not an exact science.  Most healthcare providers are genuine in their desire to provide good healthcare to their patients.  But, medical mistakes occur and people are harmed by those mistakes.  The truth is that medical malpractice laws are in place to help injured people and protect others from being harmed.  However, there are certain myths relating to medical malpractice that do not stand up to the facts.

There are many explanations as to why your doctor may be behaving this way. Can you separate the fact from the fiction:

  • Sometimes sick people want answers to questions that can’t be answered, and sometimes they want an answer that isn’t the truth.
  • Physicians who master medicine can fail miserably when it comes to communication and bedside manner.
  • The physician’s hands are tied by fear of being sued for saying or doing the wrong thing.

The first two are simple and conceivable explanations for a doctor’s failure to communicate adequately, but the third bullet point is an insurance lobbyist’s fever dream. The truth is that medical malpractice laws are in place to help injured people and protect others from being harmed.

Dismantling Medical Malpractice Myths

Tom Baker, a professor of law and health sciences at the University of Pennsylvania Law School, deconstructs insurance company mythology in “The Medical Malpractice Myth,” a book published in 2005 by the University of Chicago Press. Baker’s point: The alleged epidemic of medical malpractice lawsuits is, in fact, simply evidence of an ongoing epidemic of medical malpractice.

In a review of Baker’s book, Mary Coombs, who taught at the University of Miami School of Law until retiring in 2014, makes this observation:

“The primary strands of the malpractice myth are the following: that many malpractice lawsuits are frivolous; that many plaintiffs obtain large judgments or settlements although the defendants did nothing wrong; and that, as a result of these lawsuits, doctors have been driven to waste substantial resources on defensive medicine, insurance premiums have skyrocketed, and good doctors have been driven out of the practice of medicine. The overall result: worse care for patients, demoralized doctors, higher costs of medical care, with no one benefiting but a few greedy plaintiffs and … trial lawyers.”

Coombs says Baker manages “systematically, persuasively, often eloquently, to dismantle each of these myths, showing either that the alleged problem does not exist or its severity is overblown.”

Common Medical Malpractice Myths

Tom Baker isn’t the only academic who has been busy slaying the insurance company’s medical malpractice dragons. David A. Hyman, a doctor and lawyer at the University of Illinois, and Charles Silver, a lawyer with the University of Texas School of Law, take on key myths in an article appearing in the Chest Journal, the official publication of the American College of Chest Physicians.

Hyman and Silver’s article is titled “Five Myths of Medical Malpractice.” Here are the five myths, verbatim, and the authors’ findings, boiled down:

Myth: Malpractice crises are caused by spikes in medical malpractice litigation (ie, sudden rises in payouts and claim frequency).

Finding: On dramatic surges in insurance rates, the authors’ research shows that the insurance system primarily responds to “the frequency of serious medical injuries,” not litigation results. They also found that stories of outlandish jury awards are common but that actual awards typically are greatly reduced in the legal process and that more than 95 percent of payouts are the result of voluntary settlements.

Myth: The tort system delivers “jackpot justice.”

Finding: The authors note that there is “a grain of truth” to the charge that uninjured patients sometimes take home millions while some who are grievously injured get little or nothing. They largely attribute that to the injured parties failing to pursue a case or their financial inability to pursue a legal solution.

“Unfortunately,” they write, “most patients are undercompensated, and those with the most severe injuries suffer the biggest gap between provable injuries and the amounts they recover.”

Myth: Physicians are one malpractice verdict away from bankruptcy.

Finding: Doctors rarely make out-of-pocket payments in malpractice cases. The article actually says such payments are “extraordinarily rare.”

Myth: Physicians move (in large numbers) to states that adopt damages caps.

Finding: The authors begin by noting that expanding caps on malpractice damages to all states would negate any incentive to move. They go on to cite other studies that fail to make the case for this alleged physician migration.

Myth: Tort reform will lower health care spending dramatically.

Finding: The authors cite studies of tort reform in various states yielding modest to no reduction in health care spending.

Now That Those Myths Have Been Debunked

Medical insurance is business, and business is about making money, so rest assured that every medical malpractice myth that is discredited will give rise to more malpractice mythology. Debunk five myths, and five more will spring up while the arguments to revive the old ones are being revamped.

Here are five more myths that frequently pop up:

Myth: Most medical malpractice claims are frivolous.

Reality: A Harvard School of Public Health study found that only 3 percent of claims examined could be labeled “frivolous” and that 63 percent constituted harmful medical malpractice.

Myth: Medical malpractice claims outnumber incidents of actual medical malpractice.

Reality: Up to 7 in 8 patients never seek relief for the injuries they suffer through medical malpractice, even though it kills about 100,000 people a year in the United States.

Myth: It is impossible to stop the occurrence of medical malpractice.

Reality: Most people injured by medical malpractice are victims of preventable errors.

Myth: Most people file malpractice claims for the money.

Reality: According to research from Harvard, most people file medical malpractice claims to determine what happened to their loved one and why it happened. In fact, medical malpractice claims at the University of Michigan Health System have dropped since it instituted a policy of apologizing and being open with patients when errors occur.

Myth: Medical malpractice claims increase insurance premiums.

Reality: Insurance rate increases are more closely linked to the insurance industry’s economic cycle than to medical malpractice claims. Also, health care costs have risen, but the number of medical malpractice claims has decreased dramatically in the past decade.

There is enough medical malpractice mythology to fill a library, and there is an equal amount of hard data showing damage to people from medical malpractice. Those numbers represent husbands, wives, siblings, and children who have suffered due to medical malpractice.

If you feel you are a victim of medical malpractice, a skilled attorney can assess your case and help you fight for the compensation you deserve and the justice that will force lifesaving change. Contact the Indiana medical malpractice attorneys at Baker & Gilchrist today for a free evaluation of your case.