AAJ Publication Identifies Five Myths about Medical Negligence

Posted on December 1, 2009 by Philip Thomas

In November the American Association of Justice published this report identifying five myths about medical negligence (malpractice).

The identified myths are:

  1. there are too many frivolous malpractice lawsuits;
  2. malpractice claims drive up health care costs;
  3. doctors are fleeing;
  4. malpractice claims drive up doctors’ insurance premiums; and
  5. tort reform lowers insurance rates.

Note: Yesterday's Natchez Democrat contained this article by attorney Sam Gwin that covered some of these issues in Mississippi.

The AAJ report then debunks each myth. Key points include:

  • medical negligence causes 98,000 hospital deaths per year;
  • there have been steady declines in the last decade in the number of malpractice lawsuits and the amounts of settlements and verdicts;
  • the vast majority of filed medical negligence cases have merit;
  • the amount spent to defend and compensate victims of medical negligence is .3% of health care costs;
  • much of the “defensive medicine” is performed to generate more revenue for health care providers; and
  • insurance premium levels are generally the same in states with damages caps as states without damages caps.

I would add another myth to this list: the myth that damages caps affect frivolous lawsuits. This might be the biggest myth of all. Proponents of damages caps argue that they are needed to address frivolous lawsuits, but it's cases with merit and severe damages that caps impact.

The public does not understand this. The public believes that caps affect frivolous cases and are surprised when you explain that caps restrict the recovery of victims of catastrophic injuries to an amount that is less than full compensation.

I am not convinced that damages caps will be permanent. At some point, there could be public backlash similar to what has happened with consumer arbitration. I have no doubt that the public supports legitimate attacks on frivolous suits. I do not believe that an informed public would support damages caps. Both courts and legislatures have a tendency to gravitate to public opinion.

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