The medical community has always been quick to blame those of us in the legal sphere for rising insurance costs. They assert that because of litigious patients looking for an easy payout, they are forced to order extra – sometimes unnecessary – tests or procedures or compel patients to have more office visits. If they don’t, they alleged, the risk of a lawsuit goes up.
But in fact, research has shown that is not the case. In fact, when Florida researchers took on the issue in a study published by the Journal of the American Medical Association, they found lawsuits do not occur at random to good doctors. Rather, in an analysis of lawsuits against obstetricians, 70 percent of all filings in a five-year time frame were made against 6 percent of doctors.
That 6 percent did not just have a run of bad luck. There is undoubtedly something that sets them apart from their fellow physicians.
In a recent New York Times analysis, a pediatrics professor at the Indiana School of Medicine had a few theories. The first of which is that some of these doctors are simply bad doctors. They don’t do a good job. They aren’t thorough with patients. They are careless, maybe even reckless. As a result, patients’ health suffers and these doctors are more frequently sued.
The second is that some types of permanent injuries or deaths require more financial assistance than others. For example, a birth injury that leads to lifelong and/or profound disability is going to be extremely expensive, and families are going to need some kind of compensation to adequately provide care for the rest of the child’s life.
But there is a third theory that centers on patient-physician communication. In one study, it was revealed that as many as a third of people who pursue medical malpractice litigation against doctors said the physician misled them. Another 70 percent said they weren’t warned of certain consequences. In a different study, patients of doctors who were previously sued for malpractice reported the doctor rushed them, ignored them or failed to explain reasons for tests or other procedures. In fact, doctors who were sued the most received twice as many complaints by patients. Poor communication was the No. 1 complaint.
Communication is critical to good health care, and if doctors aren’t communicating, they aren’t doing their jobs effectively. But this analysis aims to explore how physicians with top-notch technical skill may still wind up getting sued more than other doctors, simply because they aren’t listening to their patients.
Problematically, most efforts to reduce lawsuits against medical professionals still focus on either making it tougher for patients to file a lawsuit or nearly impossible to win a reasonable award or settlement. This may work to a degree, but it punishes victims of wrongdoing, rather than really trying to address the underlying issues.
There is evidence to suggest communicating even about medical mistakes can reduce litigation. Starting around 2000, the University of Michigan’s hospital started a program with a goal of improving medical error communication. Doctors were encouraged to tell patients about the mistake, what happened and what would be done about it in the future. Doctors were also encouraged to apologize – something that is generally not done, as it is seen as an admission of liability.
But now 15 years later, what they have found is that claims dropped by nearly 40 percent and lawsuits fell by 65 percent and legal costs fell by 60 percent – and this was despite a more than 70 percent increase in the number of patients receiving care.
This is just another example of why “tort reform,” with unreasonable damage caps and bars to litigation, is not effective and worse, harms those who have been hurt the most. Approaches like this may serve as a much more preferable alternative.
If you have been injured, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
To Be Sued Less, Doctors Should Consider Talking to Patients More, June 1, 2015, The New York Times
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Florida Accident Victims Finally Paid Settlement Money, May 7, 2015, Boca Raton Medical Malpractice Lawyer Blog