Is Medical Malpractice Really The Crisis That Politicians Say It Is?

Medical Malpractice

Medical malpractice is the third leading cause of death in the United States according to a 2016 study done through Johns Hopkins University.  The study found that there were approximately 251,000 deaths on an annual basis due to medical errors.  Despite that evidence, relatively few claims are being brought in Florida for medical malpractice and, even when such claims are brought, the defendants seem to win most of the time.  Tort reform has been an hot topic of political debate for many years, including a “medical malpractice crisis” that is raising the cost of healthcare and driving doctors out of the practice of medicine.

Why Do People Think That Medical Malpractice Is At A Crisis?

To understand this issue, we need to take a look in the mirror and examine our own human nature.  In general, modern medicine does some amazing things.  In many ways, modern medicine is a “miracle” that we should all be thankful for.  This “miracle of modern medicine” makes life better for all of us.  However, a medical malpractice lawsuit attacks the “good nature” of a doctor’s medical practice and the natural reaction is to defend doctors for what they do in general rather than look at what happened in a particular case.  In other words, it is hard to sue someone who is part of a group of people who do a lot of good in the world.

In many ways, every medical malpractice case is “personal” for the people who have to ultimately decide whether a doctor has legal responsibility.  If the jurors in a medical malpractice case think that awarding damages will either raise the cost of healthcare for them or will drive a “good” doctor out of their community, then the jurors in that case are likely to find that the doctor is not negligent and, therefore, is not legally responsible for the claims brought by the lawsuit.  Because of the belief that healthcare costs will go up or doctors will leave, the jurors feel that medical malpractice lawsuits threaten their own well being and the people serving as jurors do not want to be “responsible” for that.

What Does It Take To Win A Medical Malpractice Case?

In order to win a medical malpractice case, you have to be able to convince 6 strangers that your case does not unduly raise the cost of medical care, does not drive good doctors to leave the practice of medicine, does not discourage the best students from going to medical school, or result in unnecessary medical testing (aka “defensive medicine”).  Many people think that the only legitimate medical malpractice is when the doctor operates on the wrong body part, leaves a foreign body inside the patient, or purposefully hurts the patient.

The key to winning your medical malpractice case is to show that your case involves a problem with the system that needs to be fixed (and your lawsuit is the way that the problem gets fixed).  For example, a particular hospital may be using a computer system that incorrectly rules out certain medical conditions after a test or the hospital does not have rules or protocols where it should.  By turning the tables, you get the jury to feel that if the doctor (or hospital) is not held legally responsible, then the incident that you complain about in your lawsuit will happen again and will happen to other people, such as to the jurors themselves or their family members.  If the jurors in your case feel that they or someone they love may be harmed, then you probably have a winner for a medical malpractice case.

Back To The Crisis Argument

Many doctors are good and have dedicated their entire lives to helping others.  But, has anyone heard of any real account of where a doctor has left the practice of medicine because of a “frivolous lawsuit?”  This is an issue that your lawyer should bring up in jury selection (voir dire).

If you were to ask any of the potential jurors in your case about any real situations that they actually know of where a doctor has left the practice of medicine (or went to a state with caps on damages), you would likely find that no one can verify any real-life situation where that has happened.  In cases that I have taken to trial (even just regular accident cases), we almost always explore the potential jurors’ thoughts on frivolous lawsuits.  Any potential juror who feels that “jury verdicts are outrageous” or “out of control” should not be a juror because they are clearly biased toward the defendant.  Further, if you press those people about why they feel that they do, the answer is more often than not that they read about jury verdicts in the news rather than basing their opinion on anyone has actually been forced into bankruptcy or kicked out of their home.  While those people may never admit it, that is proof that such person’s opinion is actually based on political rhetoric rather than reality.

Human Nature Is A Reality

History has a way of repeating itself even though people know what has happened.  We all want high quality healthcare.  We all want to be able to get healthcare when we need it.  And we also all want healthcare that is affordable.  However, eliminating financial accountability for mistakes in the healthcare industry only serves to decrease the overall quality of healthcare and, arguably, diminishes the availability and affordability of healthcare.

Human nature shows us time and time again that if there is no consequence for failure to do something correctly, then that is the same thing as having no duty at all.  This is why we have regulation in virtually industries.  Likewise, medical malpractice lawsuits are a results driven way that medical care gets inspected and examined for problems.  The hospitals and corporate owners of medical clinics cannot be trusted to “self-police” their business when they are making millions of dollars.  This is why there is the saying about the fox guarding the hen-house.

Medical Malpractice Attorneys Are Agents Of Change

If you think that something went wrong with your medical care, you should contact a Lakeland medical malpractice attorney for a professional review of your case.  A consultation with a medical malpractice attorney is free and completely confidential.  If we determine that you do not have a case, then you owe us nothing.  Call today to schedule your free case review.


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May 05, 2017