Medical liability system presents hurdles to injured patients

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The following  report is part of 2 Minute Medicine’s new Law & Medicine Specialty Topic, which aims to briefly highlight key current issues in health law published exclusively in academic law journals. 

1.  Attorneys rejected more than 90% of potential medical malpractice cases due to low monetary damages, expensive litigation costs, and tort reform. 

2.  Medical malpractice damage caps had reduced awards to plaintiffs, and the reduction has in turn increased patients’ difficulty in securing legal representation when they suffer legitimate harms. 

Evidence Rating Level: 3 (Average)

Study Rundown: The legal practice area of medical malpractice is often criticized for too easily allowing patients to recover for injuries. The threat of frivolous lawsuits may encourage physicians to order more tests, which increases insurance and health care costs. Fear of liability may even deter physicians from practicing or performing important procedures at all. However, in reality, a vast number of legitimate medical errors go uncompensated, despite victims’ suffering valid injuries. Patients who have suffered real injuries as a result of medical negligence are increasingly unable to recover due to the unwillingness of attorneys to accept their cases. Tort reforms have led to patients’ receiving less compensation, yet litigation costs have risen, which has resulted in a majority of attorneys rejecting valid malpractice cases unless the injury suffered is such that a victory in court would lead to damages equal to or in excess of $250,000.

This survey study found that attorneys reject between 95% and 99% of cases they screen. Over 98% of attorneys would reject almost 25% of medical negligence claims because the potential damages fall below $50,000. Over half the respondent attorneys rejected cases, regardless of the likelihood of winning, if potential damages were under $250,000.

Click to read the study in Vanderbilt Law Review

Relevant Reading: Claims, Errors, and Compensation Payments in Medical Malpractice Litigation

In-Depth [survey]: A survey asked attorneys who represent malpractice plaintiffs about case-screening procedures, case-rejection rate, reasons for rejecting cases, minimum damages among accepted cases, and other various factors. The survey included consideration of settlements in addition to litigation. 464 attorneys completed the survey, which was open for approximately one month. The survey questions were targeted and unbiased, though the sample size and length of time available for attorneys to complete the survey was potentially too small. 23,026 attorneys were sent the survey, though the actual amount of medical malpractice attorneys who received the survey was likely smaller, given the potential for outdated email addresses or incorrect contact information. Since the survey was entirely voluntary, there is some risk of selection bias.

The responses indicated that most attorneys reject between 95% and 99% of cases they screen, with 76.8% of attorneys surveyed rejecting over 90% of patients’ cases. Damage threshold results (the maximum amount of damages below which attorneys would reject a case) indicated 0-1.18% of medical malpractice attorneys accepted cases with potential damages of less than $50,000, dependent on the likelihood of success. Thus, over 98% of attorneys would reject almost 25% of medical negligence claims because the potential damages fall below $50,000. Over half the respondent attorneys rejected cases, regardless of the likelihood of winning, if potential damages were under $250,000. Damage caps and other tort reforms were among the factors affecting attorneys’ willingness to accept cases.

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