Libbyt, re: By not having any accountability for filing a malpractice lawsuit, anyone can file a lawsuit...even if there is no basis for the suit. Often a malpractice insurance company will force a physician to settle out of court (even if they feel malpractice was not an issue) because it can be less expensive to settle a worthless suit, than to defend the case.
Libby, I wonder if you see the logical hole in what you stated? Let me point it out.
First, the time and costs for most medical malpractice cases are financed by the attorney who files the suit for the injured party. If the case is lost, the attorney is out both his time and his expenses. In medical malpractice cases he is required to present expert testimony from medical people to demonstrate that the bad result originated in malpractice and that the bad act "caused" the damages. In the average malpractice case those costs run into the tens, or hundreds, of thousands of dollars. If the injury is not substantial a personal injury attorney will not even file it because the recovery will not return his costs of the case.
When the case is presented before a jury the Defendant has lots of medically trained friends who will eagerly testify that the act was not malpractice and that even if it was, the injury would have occurred anyway. Most juries are very reluctant to find the "good doctor" responsible. They have an inner need to trust the people who preserve their health and thus the percentage of defense verdicts is high.
Most medical malpractice policies have a clause that gives the doctor the right to approve or disapprove the settlement. If the doctor feels he did not screw up he will rarely approve a settlement. He may, however, approve a settlement when he knows he has a problem and then declare that "I never did anything wrong, I only settled because the insurance company told me that juries couldn't be trusted." I can assure you that it is the rare doctor who will say, "I screwed up, I hurt the patient, and my insurance company paid."
So that's the setting from which you conclude that "anyone can file a [malpractice] lawsuit."
If you ever become the victim of medical malpractice you will soon learn the utter folly of that statement. One of the hardest things to find is any attorney willing to take on a medical malpractice case. It requires great skill, a huge ability to finance the case, a willingness to face a well-oiled defense machine with huge deep pockets and a rabidly aggressive defense posture, and the guts of a riverboat gambler.
The bottom line is that any attorney who files such cases frivolously as a matter of course will soon find himself broke.
But the urban myth of frivolous lawsuits dominating filings and attorneys getting rich on such filings is widespread. The reason is because the insurance companies whip their doctors into a panic with such myths, raise their rates mercilessly and enjoy a backlash that rebounds against their adversaries; injured parties and their attorneys.
As far as the "runaway jury" myth in medical malpractice cases, call up some med mal defense attorney and ask him how many times he was willing to waive a jury in a med mal case. If he's honest he'll probably tell you that the insurance company would rarely, if ever, allow that. That should tell you something about what the insurance companies really think about the "excesses" of most American juries.
Yes, there are bad cases filed and once in a while there will be a bad verdict against the doctor. There are also bad verdicts FOR the doctor. The real problem in medical malpractice is, however, that insurance companies are avaricious, inefficient and that only a few bad doctors are responsible for a large percentage of recurring malpractice cases.
If the medical and insurance professions would find the backbone to force the worst medical personnel out of business, malpractice would decrease dramatically. |
