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What Medical Malpractice Crisis?


Posted by Michael D'Amico on Nov 20, 2015 in Medical Malpractice

Lawyer Mike D'AmicoDefensive medicine has been described by some doctors as the ordering of tests that are not believed to be medically necessary simply to defend a potential future, then unknown and entirely speculative, claim of medical malpractice. The fallacy is that there is no claim of medical malpractice for the failure to order a test that was not medically necessary. Instead, as relevant here, medical malpractice is the failure to order a test when it is medically necessary. In Connecticut, as in other states, a patient may not bring a medical malpractice claim unless the patient first obtains a written opinion from a similarly qualified physician that malpractice occurred.

So who gave these doctors bad information that has given rise to the defensive medicine described? Answer: the medical malpractice insurance industry that stands to profit from scaring doctors into believing that there is a medical malpractice crisis so as to justify inflated policy premiums; and scaring the public and politicians thru propaganda to vote for and pass reform legislation that will deny legitimate victims of medical malpractice fair compensation so as to further pad the profits of these powerful and wealthy insurance companies. This propaganda has been so pervasive for so long that even medical schools have been scared into believing that our medical students should be told to consider defensive medicine.

Some important facts:

  1. Total number of Connecticut residents: 3,597,000 (2014 US Census)
  2. Total number of inpatients at Yale New Haven Hospital (1 of more than 35 hospitals in the state) last year: 78,529 (ynhh.org)
  3. Total number of outpatient encounters at Yale New Haven Hospital last year: 1,204,666 (ynhh.org)
  4. Total number of medical malpractice cases filed in July 1, 2014 - June 30, 2015: 250 (less than one-half of one percent of all civil case filings statewide)(as reported by the State of CT Judicial Department)
  5. Medical Malpractice lawsuit filings in CT have fallen 35% since 1994/1995 (as reported by the State of CT Judicial Department)
  6. Medical Malpractice Insurance Company underwriting profits averaged 31% in 2008-2013 period (2014 Connecticut Medical Malpractice Annual Report)
  7. Medical malpractice insurance companies are making twice the return on net worth than are the property/casualty insurance industry. In fact, the medical negligence insurance industry has had seven years of underwriting profit - something  unheard of in the property/casualty sector (Report on Profitability By Line By State in 2012, National Association of Insurance Commissioners, 2013; A.M. Best webinar, “State of the Medical Professional Liability Insurance Market,” May 1, 2014)

So where is the crisis? There isn’t one. It is fiction for profit. And I sympathize with the doctors that have been duped into believing that there is a crisis.

Some medical associations have advocated for health courts as a solution to this imagined crisis. Aside from being unnecessary, health courts are a bad solution searching for an imagined problem. A system of health courts would be extraordinarily expensive for taxpayers to fund; and likely unconstitutional as depriving legitimate victims of medical malpractice their right to a jury trial.