When I began handling medical malpractice cases 20 years ago, case expenses were about $25,000 per case. Now, case expenses range from $50,000 to $200,000 (on average about $100,000) per case. As a result, malpractice attorneys cannot afford to handle cases that do not involve a catastrophic injury, unless liability is relatively clear-cut. However, “clear cut” cases are somewhat mythical. For instance, about 40% of retained foreign object cases, i.e., where a sponge or instrument is left inside a patient, result in defense verdicts. Overall, patients lose at trial >85% of the time. In light of these startling facts, few lawyers in Ohio are willing to handle medical negligence cases. You can read more about this problem here: http://www.propublica.org/article/patient-harm-when-an-attorney-wont-take-your-case
There are several obstacles to successfully handling a medical malpractice case. First and foremost, the lack of transparency inherent in medicine means that I have to conduct my investigation without access to incident reports or any cooperation. The peer review privilege allows negligent hospitals and doctors to hide facts revealed by their internal investigation. Secrecy is now well-ingrained into the very culture of medicine.
Second, there is a lack of accountability in medicine. State medical boards are lax in enforcement and unskilled in investigation. Hospital staffs are self-policed — by golfing buddies who are unlikely to probe into bad outcomes. Worse, doctors and hospitals can actually benefit financially from their negligence through longer stays and more charges, so there is no incentive to change.
Third, tort laws require proof of “causation,” meaning that a patient must show that his/her outcome would likely have been different if acceptable care had been provided. This element of the claim leads to exponential increases in the number of expert witnesses, which in turn drives the cost of litigation up. It also confuses jurors, leading to many defense verdicts. Causation should be presumed when negligence is shown and the outcome is otherwise speculative.
Finally, jurors are inherently prone to many anti-plaintiff biases. These well-defined biases, such as hindsight bias and defense attribution bias, are subconscious and only manifest after the trial is underway. Judges and jurors are uninformed about these biases, so they cannot take steps to reduce the effect of jury bias on proceedings.
Reduction of future medical errors can only be achieved through full accountability for mistakes. Medical malpractice results in >100,000 deaths and countless catastrophic injuries each year. This is a public health crisis that is being ignored. Worse yet, most injured patients are deprived of access to justice when it occurs. We continue to fight this battle despite its increasing difficulty.