Springfield Business Journal Articles
Sarah Delano Pavlik and Tom Pavlik write a monthly column on legal and business issues for the Springfield Business Journal.

Their columns will be added here each month after publication.
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If you have email, chances are you've received an email purporting to list the year's most outrageous litigation stories. This last year, the 'winner' involved a lawsuit brought by the driver of a motor home who set the cruise control, then left the wheel to make coffee in the kitchen. Needless to say, the motor home crashed off the road. According to the email, the driver sued the manufacturer, claiming that the owner's manual never warned him not to leave the wheel. The jury awarded him $1.75 million. The story, of course, is fake - just another 'urban' myth.

Other myths involving our litigation system, however, seem to have been accepted as true without much, if any, consideration of the facts. But those very facts should cause the intelligent reader to at least ask some pointed questions about the typical argument for medical malpractice 'reform.' Let's look at some of the commonly accepted myths and the relevant facts.

Given the recent Illinois budget debates, who hasn't heard the mantra about the frivolous medical malpractice lawsuit? But what you rarely hear is that Illinois already has safeguards in place to address this concern. Before filing a medical malpractice lawsuit, a plaintiff must first obtain a medical doctor's affirmation that there is merit to the would-be plaintiff's claim. That's right - state law requires another doctor to bless the suit before it can even be filed. And, just to make sure that it's not too easy for plaintiffs to find a doctor who will 'play ball,' the law requires that he or she have practiced, or taught, for six years in the relevant field.

Another myth is that a cap on medical malpractice awards would lower malpractice insurance premiums, which are allegedly driving doctors out of Illinois. The facts, again, don't support the claim. In Nevada, for example, the legislature put a cap on malpractice awards in 2002. Shortly thereafter, major medical malpractice insurers announced that they would not be lowering premiums. And, just recently, Nevada's three major malpractice insurers announced rate increases of 17-93 percent. In Missouri, it's been reported that premiums are going up dramatically even though the number and cost of malpractice claims have been steadily declining.

What about the myth that limiting malpractice awards will lower healthcare costs? ItÌs just not true. According to the Statistical Abstract of the United States and A.M. Best, the insurance industry's leading provider of information, only one-half of one percent of the nation's healthcare spending was devoted to malpractice insurance premiums. The Congressional Budget Office has likewise concluded that malpractice caps would lower health care costs by no more than one half percent and that 'the likely effect on health insurance premiums would be comparably small.'

Likewise, the facts don't bear out the claim that everyone and his brother files malpractice claims in the hopes of winning the litigation 'crap shoot.' First, according to a Harvard Medical Practice Study Group, only one of every eight instances of medical malpractice ends up as a filed claim. Consider these results in light of a study by the Institute of Medicine that found up to 98,000 patients die in hospitals each year as victims of preventable medical errors. Second, according to the National Practitioners Databank, in 2000 the median award in successful malpractice suits was $125,000. Coupled with the fact that a 2000 Bureau of Justice Statistics' study found that only 26 percent of malpractice trials ended with a plaintiff's victory, this hardly seems to be the land of plaintiff's milk and honey described by those who want to limit an injured patient's rights.

Another fact that helps shed some much-needed light on this debate was publicized by the Illinois State Bar Association. It found that over the last two years, only 12 Illinois doctors have been suspended from practice because of malpractice. As that group states, "Does anyone really believe there are only 6 cases of malpractice worthy of suspension all year in the state of Illinois? Of course not." The Bar Association points out that such suits act as a brake by reminding health care providers that with the benefits of their jobs comes great responsibility.

It's easy at first blush to be appalled at media reports of large verdicts in medical malpractice cases. But, ask yourself if any amount of money could compensate you for loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain, permanent and severe disfigurement or the loss of a child or spouse. Imagine yourself with such losses, and then ask if $250,000, a limit commonly suggested, is fair compensation for the permanent loss of your arm, or even worse, of your child.

A constant theme in these columns is that there is no excuse for being ill informed. Disagree if you wish, but at least take the time and effort to review the facts so that you can form an educated position.

by Thomas C. Pavlik, Jr.
Posted in: August, 2004
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