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Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, October 16, 2012

Shepherd on "Justice in Crisis: Victim Access to the American Medical Liability System"

Joanna Shepherd (Emory) has posted "Justice in Crisis: Victim Access to the American Medical Liability System" to SSRN.  The abstact provides:

An often overlooked problem with the current medical malpractice system is the vast number of medical errors that go uncompensated. Although studies indicate that one percent of hospital patients are victims of medical negligence, fewer than two percent of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases. I conduct the first national survey of attorneys that explores medical malpractice victims’ access to the civil justice system. The results from the survey indicate that the economic reality of litigation forces many medical malpractice attorneys to reject legitimate cases. In fact, over 75 percent of the attorneys in my survey indicate that they reject more than 90 percent of the cases that they screen. The attorneys indicate that insufficient damages and high litigation expenses are their primary reasons for rejecting cases and that several tort reforms have reduced their willingness to accept cases. Moreover, the majority of the attorneys respond that they have threshold damage values, below which they will not consider accepting a case. In fact, over half of the attorneys responded that, even for a case they are almost certain to win on the merits, they will not accept the case unless expected damages are at least $250,000. For a case that they are only slightly likely to win, the vast majority of attorneys require minimum expected damages of $500,000 to accept the case. Because of the high cost of medical malpractice litigation, plaintiffs’ attorneys simply cannot economically justify taking cases with damages below these thresholds. As a result, many legitimate victims of medical malpractice are left with no legal representation and no meaningful access to the civil justice system.   


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You know, this paper just makes me laugh. Not just chuckle but break out into a big guffaw. OK, I know. We were all told in law school that "For every civil wrong, there is a remedy." Maybe somebody actually believed it then. And while that may be a truism etched in granite among law school faculty, in the real world, it falls somewhere between pure mythology and total delusional thinking. Tort is a lottery. Is Ms. Shepherd just figuring this out?

She mentions the "deterrent value of tort holding doctors responsible for risky behavior." Huh? There is no deterrence in medical malpractice. Whatever there might have been got cooked into the books more than twenty years ago. That's why every time you go to the doctor, you get dozens of tests and referred to seven other specialists. The real deterrence comes from peer review and corporate risk managers inside the system. Not tort.

We could turn med mal into an administrative law system. I am not sure that solves much. What if 50% or 30% of people who have an adverse experience, or just a bad time at the doctor's office filed a claim? Can we afford that? Think your medical insurance is expensive now, just add on another layer of costs. For one thing, it is a small step from administrative law to "entitlement." The bar can be lowered. The rules of evidence get sloppy. And the liability gets capped. So there is a problem with paying real damages.

Posted by: Tony Francis | Oct 19, 2012 2:18:29 PM

I have been thinking about this paper. Isn't the fact that most potential malpractice cases can't be brought serve as an indictment of the business model tort lawyers are using?

And who says these are malpractice cases? They aren't malpractice until they have been adjudicated as such by a court of competent jurisdiction.

Posted by: Tony Francis | Oct 27, 2012 6:20:41 AM

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