Facts and Figures vs. The “Frivolous Medical Malpractice” Narrative

April 29, 2016
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10 years ago, medical malpractice took center stage in the U.S. political arena when John Edwards was announced as 2004 Democratic Presidential Candidate John Kerry’s running mate. Many doctors were in an uproar, accusing Edwards of having made a legal career out of “junk science” and frivolous medical malpractice cases.

10 years ago, medical malpractice took center stage in the U.S. political arena when John Edwards was announced as 2004 Democratic Presidential Candidate John Kerry’s running mate. Many doctors were in an uproar, accusing Edwards of having made a legal career out of “junk science” and frivolous medical malpractice cases. The Washington Times even quoted a neurosurgeon who claimed that “[doctors] are currently being sued out of existence… people have to choose whether they want these lawyers to make gazillions of dollars in pain and suffering awards or whether they want health care.”

The contention made above by the quoted neurosurgeon, that you can either have legal protection or health care, but not both, is just plain wrong. Doctors are still around. Nobody was sued out of existence. Most importantly, patients still need protection from a system that still, unfortunately, sometimes hurts instead of heals them. Nevertheless, making the ethically questionable Edwards (whose life was later shrouded in scandal) the face of patient redress may have done more to hurt those afflicted by medical errors than help them, as a thick frivolity-in-law narrative and stigma engulfed the country. Unfortunately, that narrative still pervades today, even though the numbers say otherwise.

The Numbers Don’t Lie

The most conservative numbers, offered by the Institute of Medicine’s 1999 report “To Err Is Human”, found that there are around 98,000 reported deaths that result from medical professional-negligence in the U.S. per year. A more recent look at that study indicates that the original report may have under-estimated the fatality count, with multiple reputable sources estimating the true number to be two to four times as high. This positions preventable medical errors as the third leading cause of death in the U.S., behind only heart disease and cancer.

Even if we do use the smaller estimate, the results are still damning. Every year, there are 17,000 medical negligence suits filed in the U.S. That means that, conservatively, between three and seven people die for every one suit filed, and that doesn’t even include debilitating injuries resulting from negligence. According one study by law professors David Hyman and Charles Silver, there are actually 12 times more injuries directly caused by medical negligence than there are malpractice suits filed.

This reality is borne out by a survey done of the Federal Judiciary which revealed that about 85% of sitting federal trial court judges consider “groundless litigation” to be no more than a minor problem. Furthermore, suits against doctors and hospitals are very expensive to the filer and they’re notoriously hard to prove–meaning that generally only those with a very good case tend to sue.

The Reality of Malpractice Suits

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A word of clarification: this article isn’t to bash on doctors, nurses, or healthcare administrators at all. Too many fail to recognize that navigating the lines between fiscal responsibility, mitigation of legal risks, and the sworn Hippocratic Oath is not an easy task. Add to this constantly shifting and changing demands of HIPAA regulatory compliance in the face of massive, rapid, and widespread EHR adoption and implementation over the last few years, and it’s hard for anyone to point a finger at physicians without realizing that there are four pointing back.

The stark reality is that the American medical industry and healthcare system, unfortunately, are broken. Good doctors the world over don’t want to make mistakes, but they’re only human–and just as shiesty trial lawyers like John Edwards don’t represent the face of medical redress, neither should the rogue physician who cut corners represent medical professional. Nobody in healthcare is perfect, and scandals continue to abound to this day, affecting patients all across the U.S. and the world.

If legal and medical professionals truly have client and patient safety and well-being in mind, they’ll realize that they are both necessary components of a framework that is supposed to exist solely to benefit others. Just as both entities have the ability to abuse their power they both also have the ability to save and transform lives. More often than not the latter is the case, no matter what the frivolity-in-law acolytes say.

Fortunately, the overwhelming amount of statistics and figures show that the “frivolity epidemic” is indeed fabricated, proving that it only takes one politically-inclined rotten-apple to spoil the whole bunch.