Medical malpractice — That’s the Crisis

Medical malpractice Pittsburgh Lawyer Neil Rosen argues that the legal system is working well by going after negligent doctors responsible for the medical and surgical errors that cause patients unnecessary pain and suffering.

We constantly hear about a “medical malpractice crisis.” In Pennsylvania, as in many other states, innocent victims are blamed; their lawyers are blamed; and juries are blamed for their verdicts in malpractice cases. Regrettably, the real culprits in medical malpractice cases are never identified. Various remedies have been proposed, such as limiting victims’ damages and their lawyers’ fees. These proposals are unjust and unconstitutional. Because of these unwarranted attacks on our civil justice system, I am writing to set the record straight.

The Legal System in Pennsylvania Works.

The Pennsylvania Constitution provides, “All courts shall be open; and every man for an injury done him in his . . . person . . . shall have a remedy by due course of law, and right and justice administered without sale, denial or delay.” This provision, adopted in 1790, is the basis of civil law requiring those at fault to compensate their injured victims. Few would challenge the right of a victim injured by a careless driver to recover full compensation.

Our law applies to everyone who is at fault and injures another, and does not distinguish between wrongdoers. It applies to physicians who fail to follow the medical profession’s “rules of the road,” and even to lawyers who fail to protect their client’s legal rights. Society benefits because the threat of a lawsuit deters wrongdoers from acting carelessly. Such deterrence is especially important in the medical arena because physicians have no meaningful internal policing body to protect the public from bad doctors.

Patients who sue their doctors should not be blamed. Pennsylvania’s malpractice laws protect innocent patients from negligent doctors. We all respect the vast majority of hard-working physicians whose concern for their patients leads to quality care. However, when doctors are too busy and uncaring, ignoring their patients’ recognizable needs, our system properly requires them to compensate the innocent victims for real and substantial injuries. To malign innocent victims seeking redress, a constitutionally guaranteed right, is disgraceful.

Juries should not be blamed. Citizens serving as jurors make sacrifices to perform their civic duty. Occasionally, juries make mistakes. With the advent of DNA testing, we learn that innocent individuals were convicted of crimes they did not commit. Yet, no one is trying to tamper with the jury system in criminal cases.

Why trust juries to decide whether a murderer should live or die, yet distrust them when awarding monetary damages against doctors?

Although injured victims who prevail are wrongfully painted as winners in a malpractice lottery, I can assure you of one thing: All seriously injured victims would return their entire recoveries if they could undo the doctor’s carelessness. To malign jurors, who perform invaluable public service, is also disgraceful.

A crisis does exist, but not as portrayed by those advocating change. Medical malpractice is now the eighth-leading cause of death in the United States, causing more deaths annually than auto accidents, breast cancer and AIDS combined! (Interestingly, while 80 million gun owners cause 1,500 accidental deaths annually, 700,000 physicians cause 120,000 annual deaths.) Most importantly, in the last 25 years in Pennsylvania, only 9 percent of doctors, many repeat offenders, were responsible for 100 percent of compensation paid.

Here’s another dirty secret. In Pennsylvania, thousands of cases are settled before trial. Physicians must approve these settlements. And, doctors and their insurers require victims settling claims (and their lawyers) to sign confidentiality agreements, burying medical errors forever. This is the real medical malpractice crisis.

Chanting the mantra of “frivolous lawsuits,” the medical profession advocates limiting victims’ damages for pain and suffering to $250,000. This argument, however, is illogical. No damages should be recovered in a truly frivolous lawsuit. In my career, I have investigated thousands of potential malpractice claims, and in the overwhelming majority of those investigations, I advised my clients that their doctors did nothing wrong.

However, in many cases, doctors were grossly negligent. When a doctor wrongfully causes real and tragic injuries, such a paraplegia, blindness, amputation or death, only the most heartless would argue that $250,000 is fair compensation, regardless of real suffering endured by the innocent victims and their families. Moreover, the cap’s proponents suggest that pain and suffering are not real injuries. Tell that to my client, a homemaker with three children who must spend the rest of her life in a wheelchair.

What about attorney’s fees? Personal injury lawyers who sue doctors receive a fee only when poor care is proven and a recovery made. This contingent fee arrangement gives those who cannot afford a lawyer access to the courts. Common sense dictates that under this arrangement, lawyers will prosecute only those cases where a recovery is likely.

Physicians and insurers propose limitations on attorneys’ contingent fees, but propose no such limitations of the fees of their attorneys. Why? It’s simple. Doctors believe that by limiting fees, lawyers won’t handle these cases and innocent victims will no longer be able to obtain representation. I can assure you, however, that just as dedicated physicians continued to serve patients when their reimbursement rates were cut, dedicated lawyers will continue to serve clients by suing careless doctors, even at a reduced fee.

This debate’s rhetoric is used primarily to bias potential jurors, and voters, against malpractice victims and their attorneys. Regrettably, it is working.

Doctors unquestionably pay larger malpractice-premiums, but that the fault lies elsewhere. Premiums are increasing because malpractice continues unabated. Five percent of Pennsylvania’s physicians have lost or settled three or more cases.

Premiums are also increasing because low interest rates and a declining stock market adversely affect profits from invested premiums. Insurance companies are the quintessential “boy who cries wolf.” We have all experienced insurance companies happy to accept our premiums but loath to pay valid claims.

Our system of justice may not be perfect, but it serves us well. It works because the law is equally applied. No individual or group should be placed above the law. Yet, this is precisely why physicians and their insurance companies are lobbying for unconstitutional special-interest legislation.

Doctors and their insurers do not deserve special treatment at the expense of equal justice for all.

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