Suing for medical malpractice is a very costly undertaking and one that few attorneys can pursue. When a case proceeds to trial, the stakes are high and the victim of the medical error places his or her faith and trust with the jury to do the right thing. One of the primary goals of a trial is to make sure that the jury as the conscience of the community understands and enforces the law. They are called upon to decide what they believe to be the safe standard of care intended for all patients and whether the care provided met the standard of care and not allow doctors to place patients in an unreasonable risk of harm. When safety of the patient is compromised everyone suffers.
The rules are set up to deter unsafe medical practice and to make sure when safe medical practice does not occur that the members of the community are there to say, through their verdict, that this is not how the injured party should have been treated; to make sure that the negligent medical providers are required to properly compensate the injured and to hopefully prevent the same type of injury from occurring in the future. Unfortunately, so many people feel that a verdict will not make a difference and will not bring back the lost health or death of a loved one so they are reluctant to award large amounts or to even find against a doctor or hospital. This attitude, in surveys and focus groups has been exposed and has been analyzed to be just the opposite of what our jury system and the medical liability system is set up to do. We do not function with an eye for eye. The only way to deter medical errors is to hold the negligent party responsible. Not awarding full damages because of the fact that money will not bring back the dead is no excuse for giving negligent parties a free pass. The goal of our medical liability system is to deter those medical providers from practicing negligently and violating safe practice rules, knowing that if they do violate the standard of care, they will have to answer to a jury.
When jurors ignore these principles because of common misperceptions or mistaken beliefs about frivolous lawsuits and the impact lawsuits have on doctors, the victims of medical errors suffer and the deterrent effect of lawsuits is lost. Most medical errors go uncompensated due to the way that our medical liability system exists. Contrary to common and often popular perception spread by talk show hosts and conservative news networks, the majority of medical claims have merit yet most victims of medical errors go uncompensated or undercompensated.
Placing dollar limits on malpractice cases and the amount that can be awarded is unjustified and has resulted in the difficulty in winning a medical malpractice lawsuit. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. The economic reality of litigation forces many contingent fee attorneys to reject legitimate cases. In fact, according to a recent study published in the Vanderbilt Law Review, 75% of the attorneys in the survey indicated that they reject more than 90% of the cases that they screen and not because there is no merit to the claims. The attorneys explain that insufficient damages and high litigation expenses are their primary reasons for rejecting cases and that limits placed on what a jury can award in a medical claim have made it impossible from a business standpoint to accept most cases.
The lack of victim compensation has, in turn, reduced the liability system’s deterrent effect by eliminating incentives for the medical community to improve care. Most studies find that malpractice liability does not influence physician behavior. They are heard to say, let’s go to trial because the jury will not likely find against us, rather than accepting responsibility and taking the time and effort to make sure the same mistake does not happen again.
Without the courageous efforts of attorneys that are not afraid to take on case, even at a tremendous cost to them, most of these victims are not compensated for the injuries they suffer as a result of medical negligence. Without dramatic change and a willingness of jurors to disregard the myths and lies about lawsuits, access-to-justice will continue to be limited and we will all be subjected to unsafe medical practices that are not forced to change.
