Oct 12

What Montana can learn from paid medical malpractice claims

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It starts with a large medical malpractice jury verdict

A recent $2.85 million medical malpractice verdict as reported in MyrtleBeachOnline.com is the kind of verdict which fuels cries of tort reform from some in the medical professoin. A South Carolina jury recently returned the $2.85 million dollar verdict in a medical malpractice lawsuit against an orthopedic surgeon whose actions left his patient a paraplegic. The plaintiff and his wife were awarded a combined $2.85 million after a jury determined that a Myrtle Beach surgeon negligently ordered the plaintiff to be taken from a hospital’s pre-operative holding area for a CAT scan, even thought the plaintiff’s vitals were unstable at the time. The plaintiff, who suffered severe injuries from an automobile accident, including severed arteries in his forearm – was taken to Grand Strand Regional Medical Center after the wreck for surgery to stop the bleeding in his arm. While the plaintiff was being prepared for surgery, the surgeon ordered a CAT scan of the patient’s knee, which also was injured in the accident. The 30-minute delay caused by the CAT scan led the plaintiff to suffer cardiac arrest and respiratory arrest, according to testimony at the trial. Although the plaintiff was resuscitated by an emergency room doctor and an anesthesiologist, the delay led to the death of a portion of Green’s spinal cord and his permanent paralysis from just above the waist down.

Study of malpractice claims

According to a study by Jessica Rubin and Tara Bishop, “fear of malpractice is commonly cited as a driver of overuse of healthcare services and high healthcare spending.” Despite the result of the $2.85 million verdict, this represents only a small minority of paid medical malpractice claims (both settled and tried to a jury). Nonetheless, physicians, policymakers and the public focus on this small portion of million dollar cases tried to a jury to drive tort reform, presumably to suggest that the million dollar verdicts is the norm.  Some statistics suggest, however, that million dollar payments to plaintiffs are only a small percentage of medical malpractice paid claims. The Rubin and Bishop study states that between 2005 and 2009, there were 58,667 claims paid on behalf of US physicians. Of these paid claims, 56,850 (96.9%) were settled outside court, and 1,817 (3.1%) were judged in court. The mean payment amount for those decided by a jury ($592,283) was higher than those settled out of court ($317,447). In 2009, less than 16% of settled claims resulted in payments greater than $1 million, while nearly 50% of the 3.1% of claims decided in court paid more than $1 million.

Lessons for Montana victims of medical malpractice

There are a couple of lessons. One, a plaintiff stands to receive higher judgments by going to trial, which comes as no surprise to trial lawyers. The other lesson is that jury verdicts in favor of the plaintiff, which represent a small portion of all filed med mal claims, are used by physicians, policymakers, and the public to push tort reform. While this may not have been the conclusion of the Rubin and Bishop study, the report did state that “for policymakers, misperceptions derived from knowledge of claims judged in court almost certainly affect how they approach malpractice reform.” The problem, according to the McGrady Law Firm who handles medical malpractice, is not out-of-control juries, but out-of-control reactions to a small portion of the medical community.

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