Clifford’s Notes, Chicago Lawyer March 1, 2014
By Robert A. Clifford
The latest statistics continue to demonstrate the long-term trend that the number of medical-malpractice filings is down, yet the number of inquiries regarding negligence involving doctors and medical personnel is up. How does one reconcile this apparent paradox?
It’s really because trial lawyers are accepting responsibility for fewer medical-malpractice cases. A major reason is that experts are required for causation involving every specialty of medicine involved in each case and on causation of damages, including computing one’s future medical needs for permanent injuries. That gets costly.
One can spend upward of $100,000, particularly on experts, to develop a case and look at three to five years of preparation for trial. You won’t find attorneys taking frivolous cases, for sure.
The medical community’s hysterical prediction that there would be increased case filings after caps on damages were found unconstitutional by the Illinois Supreme Court for the third time in 2010 never came to pass. Fewer attorneys are interested in prosecuting these highly complex cases that require heavy litigation and a mindset to go to trial, and attorneys that do so are accepting fewer cases.
The annual Report of the Illinois Courts Statistical Summary which compiles the number of all civil cases filed in Illinois from 2007-2011 shows a decline of nearly 25 percent. The number of medical-malpractice cases filed in Illinois has been on a steady decline for the past decade, down nearly 40 percent, according to court records.
At the same time, the state’s largest medical malpractice insurer for doctors, ISMIE Mutual Insurance Co., has reported growing profits to a record of nearly $57 million in 2012. (Its numbers for 2013 won’t be released until the end of March.) ISMIE also reports the number of claims paid has steadily declined since 2008. Finally, the National Association of Insurance Commissioners has released data showing that nationwide, including Illinois, medical-malpractice insurers are twice as profitable as other lines of insurance such as automobile and homeowners.
What does all of this mean? It means a lot of medical malpractice is going unaccounted for. Only those who are permanently injured or killed at the hands of doctors or other medical professionals’ negligence have even a chance to recover through the civil justice system. In 1999, it was reported that as many as 98,000 people die each year from medical mistakes. In 2010, the office of the inspector general estimated 180,000 deaths from medical errors. A new student from the Journal of Patient Safety puts that number between 210,000 and 440,000 on a national level.
At the same time, medical errors are costing Americans $1 trillion every year due to shortened life spans, productivity losses and additional medical costs that become necessary. This is a travesty, particularly in the new era of Obamacare where everyone is trying to get healthcare coverage. The focus should be on providing meaningful insurance reform that will keep costs down for doctors and patients and that will ensure access to quality care for everyone.
Accountability. That’s really what it is all about.
Americans rely on the courts to hold wrongdoers accountable for the harm they cause when their negligent actions lead to physical injury or death. Physicians know that when they take the Hippocratic oath to “do no harm.” When something goes wrong, the person or entity that is responsible needs to be held accountable to the person and the family whose lives are forever changed. Instead of transparency and a culture of accountability that needs to pervade through the entire hospital environment, hiding the truth, egos and arrogance become commonplace.
People must work in an atmosphere where they feel that it is important and even imperative to speak out when something goes wrong. The workforce must understand that when something isn’t right, speaking up to their superiors without fear of repercussions or reprisal in the end creates a safer work environment for everyone.
Too many times businesses allow problems to be covered up, only later to find the problem fester and become exacerbated because accountable care wasn’t held as a standard to be rewarded. This becomes even more challenging with hospitals merging and dynamic changes occurring in hospital care.
In trying to survive financially, hospitals cannot take risks that compromise patient care. Hospitals and their medical staff must figure out how to make patient care concentrate more on value not volume.
Better use of nurses and physicians’ assistants’ time, collaboration and teamwork and being patient-centric is operating from an accountable care model that may mitigate or even prevent mistakes. The insurance industry also will recognize what a higher reliability means to their premiums.
The health care profession is run by people who need to be reliable. Hospitals and health care must embrace the notion of focusing on the culture and behavior of people who run this business.
Lives are at stake.