Why are Medical Malpractice Cases Difficult to Settle

[Brian57]

Why can't at least some medical malpractice claims be evaluated like auto and HO policies evaluate them? That is to simply admit a doctor made a mistake and cover it without forcing every claim to he handled by attorneys who will just inflate and drag it out. Not everyone wants that pot of gold. Not every claim is that difficult to evaluate.

[free9man]

Homeowners and auto policies do not just pay out large claims. They are only going to roll over quickly on small claims.

Med-mal claims are often very large so it makes sense for those insurers to fight them. Yes, there are many smaller claims where settling probably makes sense but the med-mal insurance companies tend to default to contesting claims.

[PayrolGuy]

Med/mal cases aren't like a car accident. With the exception of the most obvious cases even two doctors HIGHLY trained in the field may disagree that med/mal happened on any given case.

[free9man]

With the exception of the most obvious cases even two doctors HIGHLY trained in the field may disagree that med/mal happened on any given case.

Hence the often dueling expert testimony in a med-mal case where one doctor swears he sees a square and the other swears it's a circle.

[PayrolGuy]

Hence the often dueling expert testimony in a med-mal case where one doctor swears he sees a square and the other swears it's a circle.

Hence insurance companies aren't paying med/mal cases like a fender bender.

[Mr. Knowitall]

Why can't at least some medical malpractice claims be evaluated like auto and HO policies evaluate them?

To the extent that you mean that some homeowner's insurance policies will pay out small amounts on injury claims that are baseless, even frivolous, just to make the case go away, that's much less likely to happen in a medical malpractice case for four principal reasons:

1. Doctors hate being sued for malpractice. Even if a doctor has not paid extra for a "vanity clause" that requires the insurance company to get the doctor's consent for any settlement, if an insurance company develops a reputation for settling dubious claims it will lose business to insurance companies that provide a vigorous defense of claims.

2. Insurance companies don't want to be hit with dubious or frivolous claims. If they let it be known that they will pay settlements on pretty much any allegation of a maloccurrence whether or not malpractice occurred, they will open the floodgates to frivolous claims.

3. It is very expensive to initiate a medical malpractice claim. It can easily cost $5,000 or more, out of pocket, just to get to the point that you can legally pursue a claim in court. If somehow a weak or frivolous case meets the screening standard, such as a certificate of merit requirement, it's also going to be pretty obvious to the defense whether or not the case is likely to succeed at trial, and whether the plaintiff's lawyer is really going to spend another $30K or more to get the case to trial.

4. Malpractice litigation is very expensive. No lawyer who has an established malpractice practice wants to take a dubious, low damages case, not only because nobody likes to lose money, but also because it takes their time and resources away from meritorious cases.

To the extent that you mean, where the defense concurs that malpractice occurred the defense might negotiate a settlement, that actually does occur. Although vanity clauses can come into play, some medical institutions attempt to reduce the prevalence of malpractice cases by taking the approach of identifying their own errors, apologizing to the patient when they agree that they were wrong, and offering up front to negotiate an appropriate settlement for any meritorious case.

[cbg]

Medicine is not an exact science. The doctor can do everything perfectly and still have a bad outcome. The human body comes with a number of variable factors, not all of which can be predicted. Science simply has not gotten that far yet. There are also situations where there can be legitimate disagreement as to the best course of action, and those variable factors can affect it. Because there is so much variety in human health and the ways they heal, it is often difficult to determine how much of a bad outcome is due to the doctor and how much of it is just due to human frailty.

[Taxing Matters]

Why can't at least some medical malpractice claims be evaluated like auto and HO policies evaluate them? That is to simply admit a doctor made a mistake and cover it without forcing every claim to he handled by attorneys who will just inflate and drag it out. Not everyone wants that pot of gold. Not every claim is that difficult to evaluate.

First, I'm going to guess that you have very little actual experience with medical malpractice claims. You appear to be taking the experience you have had so far with your one injury to represent what happens to ALL such claims. You ought to know that’s not a logical assumption to make.

When the malpractice is pretty evident without the need for extensive expert opinion, med mal carriers certainly do pay claims without forcing the patient to go through litigation, much like any other negligence claim. The problem is that many patients, and apparently yourself included, seem to think their adverse outcomes are “obvious” malpractice when, in fact, it is not obvious at all. To be fair, that kind of bias occurs in many other types of tort claims, too: the injured person tends to believe the other person was “obviously” negligent when, in fact that may not have been the case. When the negligence is not obvious, insurers are going to be less likely to quickly pony up the cash.

Is it true that medical malpractice claims are more difficult than many other types of neligence claims? Yes. There are two reasons for that. First, medicine is as much an art as a science. An adverse outcome can occur even with the best of care. What works for one patient may turn out to be a disaster for another, and sometimes it is not all that clear why the two patients who had similar conditions and recieved the same care had such different outcomes. Thus, most medical malpractice claims are heavily dependent on expert testimony, which is expensive and even there the issues can be contested as experts may disagree on whether the doctor met the standard of care or whether what the doctor did was the cause of the patient’s problems. In short, medicine is more complex and and in many instance that makes it harder to determine negligence than would be the case for, say, a rear end car accident.

Second, the medical lobby has been successful in many states in erecting more barriers to medical malpractice lawsuits than the rules that apply to other personal injury actions. Doctors are a sympathetic group to the public (unlike personal injury lawyers) and when they go to the legislature claiming that high med mal insurance premiums are one of the big causes of high health care costs and making dire predictions that med mal actions are going to drive out doctors leaving insufficient numbers to provide needed care, they tend to get the legislators’ attention.

I can appreciate that you would like to get quick cash for what you believe was medical malpractice. Pretty much every patient who believes himself/herself a victim of medical malpractice wants that. But the doctors are entitled to their day in court, too, before they are forced to pay you. You have to prove the malpractice when it is not objectively obvious. Just like any other negligence claim You don’t have to like it, but that is how the system works.

[ebayuser]

Second, the medical lobby has been successful in many states in erecting more barriers to medical malpractice lawsuits than the rules that apply to other personal injury actions. Doctors are a sympathetic group to the public (unlike personal injury lawyers) and when they go to the legislature claiming that high med mal insurance premiums are one of the big causes of high health care costs and making dire predictions that med mal actions are going to drive out doctors leaving insufficient numbers to provide needed care, they tend to get the legislators’ attention.

I agreed with everything you said except this point. The medical lobby is non-existent (by medical lobby I mean a doctor's lobby not pharmaceuticals or even nurses). Doctors are not allowed to organize. They are constantly being forced into contracts that make no sense and have oversight by halfwits errr I mean people who are not in the medical field. There are no dire predictions: if you look at states where medical mal practice runs rampant you will see a lack of doctors. For example see this article: https://www.equotemd.com/blog/obgyn-...ice-insurance/. People in this country don't understand that medical care is not a right but a privilege and that if the populace and the legislatures keeps on beating on doctors the only ones to suffer will be themselves. We are already seeing a decline in the quality of doctors coming out of medical schools as attitudes shift in the incoming students. These students don't see medicine as a high reward for hard work field filled w/ personal satisfaction. Instead they see it as a commodity job like any other office work. They expect to work their shift and go home. If you think medical mal practice is tough now wait until corporate America finishes its stranglehold on the medical community. Then suing for medical practice will be like suing any other big corporation. b

[Taxing Matters]

I agreed with everything you said except this point. The medical lobby is non-existent (by medical lobby I mean a doctor's lobby not pharmaceuticals or even nurses). Doctors are not allowed to organize.

Then you have not heard of the American Medical Association (AMA)? That is an association of doctors and it is a very effective lobbying group. Indeed, the AMA is one of the top lobbying organizations in the nation, spending more on lobbying Congress and the federal government than almost any other group. A listing of the top 50 lobbyists compiled from required lobbying public disclosures and published by the Hill last year showed the AMA was 6th in spending among all lobbying organizations in 2016, just behind the Pharmaceutical Research and Manufacturers of America association and the American Hospital Association (and the AHA also has a stake in lobbying for favorable med mal laws for doctors). In 2016, that listing shows the AMA spent $19.4 million lobbying Congress, and the AHA spent just under $21 million. And that was just lobbying Congress. Those organizations are also very active lobbying the states, too. Thus, I strongly disagree with your contention that “the medical lobby is non-existent.” It is just the opposite; doctors have one of the most active lobbies in the country.

By contrast, the National Rifle Association (NRA), which gets a lot press for how much it lobbies, wasn't even in the top 50 in 2016. It spent just $3.2 million, a mere 8% of what the AMA and AHA collectively spent lobbying in 2016.

What doctors have trouble doing is organizing collectively to bargain with insurance companies because of federal anti-trust laws. That's the issue you are pointing out.

And doctors are still the highest earners of any profession based on the the figures compiled by the Bureau of Labor Statistics (BLS). I am a successful lawyer, but my doctor friends out earn me and many other lawyers, even after paying their medical malpractice insurance. I don't see them doing as badly as their lobbying organizations sometimes make out to the legislators.