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Shapiro, Lewis, Appleton & Favaloro
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Surprising numbers in medical malpractice claims

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As a personal injury lawyer at a law firm which handles plaintiff’s side, medical malpractice cases, I find the following reported numbers startling:

1. The majority of medical malpractice claims close without payment to the injured person.
2. Only 2% of medical malpractice victims make a claim.
3. 80% of the time the doctor or the hospital wins in cases that go to jury verdict.

How to reconcile these statistics:
First, most Americans are not litigious and find the idea of making a claim against a doctor or hospital is distasteful. So, even though over 80,000 Americans are killed by medical negligence each year and many more are hurt, 98% of them never make a claim. They want to trust that their doctors are looking out for them and are forgiving errors because after all, doctors are human. So, it means that the vast majority of people who are killed or severely injured by medical malpractice never even contact an attorney.

The same study that showed that most claims never result in any compensation to the victim also showed that clients did not file medical malpractice claims immediately after injuries. Typically, according to the report, medical malpractice claims are not filed with insurance companies until about 15 to 18 months after the injury. Even though the statute of limitations for medical malpractice is two years in Virginia (VA), the injured patients are giving the doctors and hospitals time to correct their errors and waiting to see if the harm is permanent and catastrophic, before even bringing it to the attention of an attorney.

The batting average for Plaintiff’s lawyers against the insurance defense lawyers in medical malpractice is hardest for me to understand. Part must be that some of the meritorious cases are resolved during the litigation process prior to jury verdict by way of settlement. Perhaps, the quality of the Plaintiff’s bar handling these cases is not as good as it should be, given the complexity and specialized knowledge involved in trying medical malpractice cases. The ability of the doctor defendant to get his colleagues to circle the wagons and support him must account for some of the bad trial results for the injured patients. Even an experienced personal injury lawyer with a background in medical malpractice would typically only be able to find and afford one or two good quality experts to testify against the doctor on the standard of care, showing that the doctor committed negligent error. For every one good expert we have, the Defense is typically able to find 3 or 4 extremely well credentialed colleagues who will come to aid the doctor standing trial for his negligence. However, some doctor groups go a step further and deliberately try to put pressure on the few doctors who are independent enough to be willing to help Plaintiff’s lawyers in these cases. Some medical organizations have threatened to revoke the membership of the physicians who dare to speak out about violations of the standard of care. This conduct I think is extremely unethical. Plaintiff’s medical malpractice lawyers and the doctors who are brave enough to come forward and tell the truth in court about other doctors’ errors really are heroes. They are the ones who are forcing the medical profession to take a hard look at itself and get rid of bad apples. Not only are we helping to get compensation for deserving people with terrible injuries, we are also holding up a mirror to the health care system to show where things are not being done as they should be.

For more information on this subject, please refer to our section on Medical Malpractice and Negligent Care.