TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, May 6, 2008

Lawsuits - One Reason Not To Become A Doctor

Chris has been posting a series on Medical Malpractice:  Actors, Flaws and Reforms.  (Second post in series here).  In an article yesterday, Forbes reported on "Reasons Not To Become A Doctor."  Forbes identifies malpractice lawsuits as one of the reasons:

[G]etting sued by a patient is a major concern. Of course, doctors who make fatal mistakes and who are unqualified should be held responsible. But there's evidence that the bulk of lawsuits brought are frivolous. Of all malpractice lawsuits brought to jury trial in 2004, the defendant won 91% of the time. Only 6% of all lawsuits go to trial; those that aren't thrown out are settled. Only 27% of all claims made against doctors result in money awarded to the plaintiff, according to [Lawrence] Smarr, president of the trade association for medical malpractice companies.

Regardless, doctors need to defend themselves against the possibility of damages--and that's an extremely expensive proposition. It takes about four-and-a-half years from the start of a lawsuit to the end, and the average cost to the defense in legal fees was $94,284 in 2004, according to the American Medical Association.


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Doctors are among the most privileged of defendants. Let's say a group practice makes $5 million a year. If they have 4 lawsuits ongoing, they are all upset.

Let's say a welding business makes $5 million a year. It will have 400 lawsuits ongoing every day, forever. Each is as weak and frivolous as those against the doctors. The leaders of this welding business get as preoccupied as the doctors, when they should be preoccupied by welding.

Walmart has 10,000 lawsuits Everyday. I would like some of the bloggers here to interview their GC to see what satellite based inventory system manages that quantity. If they ever do, I would like to submit questions. Some involve Hillary Clinton's conduct in the Rose Law Firm days.

The public has valued both businesses the same, by their income. So, torts deters business formation, and interferes with development in all productive sectors, far worse in most businesses than in medicine.

Posted by: Supremacy Claus | May 6, 2008 5:19:49 AM

I'm interested in what lies behind the statistic that 91% of jury trials are won by the defendant. Since these cases (apparently) went to the jury they are by definition not frivolous in the sense of baseless: by getting to the jury they have obviously survived both a 12(b)(6) motion and a summary judgment motion (or whatever the state equivalents of those are). So, given that there is a legitimate case involved, what would explain the high rate of defendant wins? The obvious (at least to me) explanation would be that while there is sufficient evidence to survive a summary judgment motion, the clear weight of the evidence is on the defendant's side. But if that's the case, why are these cases brought in the first place? My understanding (which may well be wrong) is that medical malpractice cases are generally brought on a contingency fee basis. If the clear weight of the evidence is on the defendant's side, why would the plaintiff's lawyer bring the case, since he would obviously lose in the end and not be paid one penny? Perhaps this is just a 'numbers game': i.e., sue 100 doctors each for $10 million, knowing that you'll lose 91 of them but you'll still make $90 million on the other ones (which seems to be implied by the 'jackpot justice' rhetoric). But if that's the case, that would imply that there's little, if any, rational basis for the jury's decision in the cases you win (you just happen to win 9 out of 100 times, sort of like flipping coins). But in that case, wouldn't judges overturn the jury's verdict? I may be missing something obvious but these numbers don't seem to make sense to me.

Posted by: Dave | May 6, 2008 5:24:26 PM

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