Medical Malpractice Reform Can End Insult to the Injured

By Joanna Shepherd-Bailey

Jennifer Shiver knows what it means to not only be a young widow, but a widow with two young boys to be raised on her own.

The Cumming mother is among thousands of silent victims of medical malpractice each year who are either harmed by a doctor or lose a family member due to medical negligence. When Jennifer’s husband died from complications from a botched bariatric bypass surgery, her life only got worse when no lawyer would take the case. As a result, she received no compensation from her husband’s death and has struggled to raise her family.

The lawyers said they just couldn’t make enough money off the case.

Many know the current medical liability system doesn’t work for physicians, but the truth is that it also fails patients and their families. An often overlooked problem with the current system is the vast number of medical-injured patients and families that never receive compensation.

This week, I released results of the first national survey of attorneys that focuses on medical malpractice victims’ access to the civil justice system. The findings reveal that many legitimate victims of medical malpractice have no meaningful access to the civil justice system.

Victims will often search for attorneys to take a case but find few takers. Because of the expense of litigating medical malpractice claims, lawyers can only financially justify taking cases with large expected damage awards, forcing them to reject many legitimate cases. The victims that are unable to find legal representation typically receive no compensation for their injuries. That leaves many patients – especially the poor and elderly – without the compensation they desperately deserve.

Key research findings include:

  • The majority of attorneys indicate that they will not take strong cases – ones they are more likely than not to win – unless expected damages are $500,000 or greater.
  • Even for a case they are almost certain to win on the merits, over half of the attorneys indicate they will not take the case unless expected damages are $250,000 or greater.
  • An overwhelming majority of the attorneys say they reject more than 90 percent of the cases they screen.
  • Attorneys respond that economic factors – either insufficient damages or the expense of litigation – are their primary reasons for rejecting cases.

Even on the rare occasion that a lawyer agrees to take a case, patients often wait years before receiving very little compensation. It takes an average of four years for a case to be resolved in court and, because of litigation expenses and other transaction costs, victims keep only 40-60 percent of their damages as compensation.

Patients for Fair Compensation, a nonpartisan organization dedicated to educating and engaging citizens and policy-makers on the negative impact on patient care due to defensive medicine, is seeking a replacement of the current medical litigation system with one that is timely and predictable. Under the proposed system, a patient who was medically harmed could file a claim for review by a panel of experts. If that panel deemed the injury was “avoidable,” the claim would be forwarded to a Compensation Department to award compensation within six months.

Georgia lawmakers should consider that all legitimate victims of medical negligence deserve to be treated equally under the law and compensated more quickly and compassionately. The creation of a Patients Compensation System may just be the way to do it.

For more information about the research paper from Shepherd-Bailey, go to: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2147915.

(Joanna Shepherd-Bailey, an associate professor of law at the Emory University School of Law, wrote this commentary for the Georgia Public Policy Foundation.The Foundation is an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views of the Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.)

© Georgia Public Policy Foundation (September 21, 2012). Permission to reprint in whole or in part is hereby granted, provided the author and her affiliations are cited.