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Dallas Morning News
Charles Silver: What lawsuit abuse?
04/14/2002
By CHARLES SILVER
Gov. Rick Perry recently announced a reform
proposal "to fix the medical lawsuit
abuse crisis that," he contends, "is
hurting doctors and hampering Texans' access
to quality, affordable health care."
I track scholarship on litigation, yet until
the governor announced his proposal, I knew
nothing about any "medical lawsuit abuse
crisis." Had I missed a new study? With
that question in mind, I visited Mr. Perry's
Web site and read his press release. Nothing
there. Although researchers have looked
closely at both medical malpractice and
malpractice litigation, the press release made
no use of their work.
Two researchers – Professors Troyen A.
Brennan and Michelle Mello of the Harvard
School of Public Health – recently visited
the University of Texas School of Law and made
these points:
• Medical errors kill thousands of people.
• Injured patients rarely sue. Only 13
percent of negligent injuries, and only 4
percent of all medical injuries, generate
malpractice claims.
• Doctors misperceive the litigation rate.
Studies of litigation have generated other
important findings. For example, plaintiffs'
attorneys reject the vast majority of requests
to represent victims of medical malpractice
because such cases are expensive and
exceedingly risky. Because plaintiffs'
attorneys get paid only when they win and
forfeit their out-of-pocket costs when they
lose, they are highly selective.
Despite that, they lose often. Health care
providers fare exceptionally well, winning the
majority of medical malpractice cases that go
to trial. Why?
First and foremost, medical malpractice is a
technical area with a high legal standard.
Consequently, it is hard to tell a good case
from a bad one until one investigates the
facts and receives opinions from medical
experts. That takes time, and there is a short
statute of limitations on malpractice claims.
To preserve the right to sue, lawyers often
must file lawsuits before concluding their
investigations. Then, when the facts and
expert witness reports come in, they drop the
cases that turn out to be weak.
Second, jurors favor doctors, hospitals and
other health care providers. A comparison of
jurors and professional arbitrators found that
arbitrators were far more patient-friendly.
For that reason, providers often reject
arbitrators' recommendations. They hold out
for juries and wind up paying less.
Third, defendants can bear litigation costs
more easily than patients or their attorneys.
Insurers bear the cost of defending
malpractice lawsuits, and they do their job
well. Plaintiffs' attorneys, most of whom work
in firms of three or four lawyers, have a hard
time matching insurers' ability to marshal
resources. Plaintiffs tend to settle medical
malpractice cases cheaply. Even good cases
fetch less than their expected value at trial.
Finally, although I looked for recent data, I
couldn't find evidence that filing rates for
medical malpractice cases, jury verdicts,
settlement pay-outs or other relevant
variables suddenly have changed. If they
haven't, something unrelated to litigation
must be driving up premiums.
What? Two things, probably. First, insurers
cover their costs by investing premium
dollars. In the 1990s, returns on investments
were extraordinarily high. Consequently,
insurance was cheap. Today, investment returns
are low. Consequently, premiums are rising
across the board.
Second, Sept. 11 has cost insurers dearly.
Everyone is likely to find insurance both more
expensive and harder to come by. Blame the
terrorists, not the lawyers.
Insurance is enormously important. So is
litigation. Policies affecting them should be
grounded in facts, not in worn-out myths about
excessive frivolous litigation.
Charles Silver is co-director of the Center
on Lawyers, Civil Justice and the Media at the
University of Texas School of Law.
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