“Despite the overwhelmingly large number of people who die from hospital-acquired infections each year, there are virtually no instances of successful litigation against doctors or hospitals.” Pamela Nolan, Unclean Hands: Holding Hospitals Responsible for Hospital-Acquired Infections, 34 Colum. J.L. & Soc. Probs. 133, 136 (2000).
One of the reasons is that injured patients cannot get lawyers.
Lawyers look for victims with legitimate injuries caused by treatment who have lost large incomes that now need to be replaced, who are articulate in answering hostile questions, who are attractive and charismatic enough to be liked by the jury, whose injuries are visible and not too difficult to understand - like a lost arm or a wheel chair or breathing from oxygen tanks - and who have young children who can sit in court where the jury can see they will need a means of support for years to come.
On the first phone call to the lawyer the victim needs to demonstrate being articulate enough to have learned what to pitch and how to pitch it to the lawyer. Almost all cases are denied in the first phone call. Some patients call every lawyer in the phone book. The few who find one then have to survive an interrogation in the lawyers office.
The cases need to be big money/easy win cases because it not only because it is extremely expensive and time consuming to pursue one, but also because almost none of them win. The few that win have to support all of the time and money spent on the many that don't.
So if you didn't have a large income, and you didn't lose it, and are not articulate, and are not attractive, and don't have the right kind of injuries, etc., good luck. Almost all cases are weeded out by lawyers right there.
When a victim survives that the case then is exposed to a court process designed to dismiss any case that would waste the time of the court because either it was not well enough supported to succeed (which could enable someone to brand it as frivolous) or did not meet the letter of the law.
Harvard researcher Dr. David Studdert, in a 1999 study of 14,700 medical charts, found that of the patients whose charts revealed legitimate negligent injury, 97% did not sue.
That is studying only grievances of which a record has been made. According to the United States Department of Health and Human Services (and others, see Medical Reporting) only 2% of adverse events are reported accurately by health care professionals. 93% do not appear in the record at all. What Studdert is saying is that of the 2% of patients whose injuries are accurately reported in medical charts, 3% get lawyers. 3% of 2% is .0006%. So of the patients with legitimate grievances, .0006% get legal representation.
For those rare few who get lawyers, of the claims that are filed only 4.5% go all the way to a jury verdict where 79.6% of those lose.
This is according to a team led by Anupam Jena, MD, PhD, of Massachusetts General Hospital in Boston. His finding was based on more than 10,000 closed malpractice claims in the U.S.A. The study also indicated that of the cases that made it to court, 54.1% were dismissed and most of the the rest were settled. The report appeared in a research letter in the Archives of Internal Medicine.
Another analysis of it, in 2011 by the AMA, found that for the few patients who get lawyers and file suits, only 8% go to trial where 90% of them lose (according to this AMA member's only link).
An injured patient both getting a lawyer and winning a case was an extremely rare thing even before liability limitation laws made it more rare (like with this nurse [on another site] who said that her real education began while watching her mother die unnecessarily).
Tort reform is not about frivolous suits. It is about even further insulating health care professionals from awareness of the harm they cause and from having any accountability for it. That is not a recipe for making medicine a safer place for patients. That is a recipe for making medicine a safer place for caregivers.
The Stop of Last Resort
My personal experience, with the hundreds of injured patients to whom I have spoken, is that they do not want lawsuits. They want help. They want diagnosis. They want their injuries treated. When they cannot get that, they want their injuries at least to be acknowledged, say by having them appear in an honest record someplace. When they cannot get any of that, they want help from some authority, like a state medical board or from the administration of the facility where they were injured. When they cannot get that they try to find a lawyer - the stop of last resort, but discover that they cannot get that either.
Only one in some thousands of injured patients can get a lawyer.
When they do
The discussion has come to be about mistakes, as though anything that goes wrong in medicine is an innocent accident (see nequamitis), and frivolous suits. The assumption is that patients are not well-meaning but everyone in health care is. Yet according to the study done by Public Citizen of the National Practitioners Data Bank 4.8% of physicians are responsible for 51% of the lawsuits. And keep in mind that for every suit filed there is a large number of injured patients who did not sue. Most meritorious cases either do not seek lawyers or cannot get them when they do. So a doctor with more than one suit or grievance is a much bigger menace that it might first appear. But patients are not allowed to know who those dangerous doctors are. The medical profession, instead of protecting patients from dangerous doctors, gets laws passed to protect dangerous doctors from the patients they injure. And has risk management sue patients to silence the patients if they try to warn other patients when they discover by sad experience who the dangerous doctors are.
It really is time that the patient community develop its own means of gathering the data to enable it to find out for itself where the dangers are and avoid them in the first place, like with Community Patient Agencies.
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Click here to be taken to an article in ProPublica (on another site) that cites additional studies and quotes explanations from lawyers like, "I turn down clearly meritorious cases all the time. . . "