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General Introduction to Medical Malpractice

How big is the problem? Medical malpractice is a bigger problem than most people want to admit. Approximately 80,000 people die in the United States each year due partly to medical malpractice (based on an extensive study entitled "Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York," published by the Harvard Medical Practice Study in 1990, a report to the State of New York). These statistics have since been confirmed by other studies performed in California and New Jersey. Meanwhile, a RAND Corporation Study regarding health care quality by Mark A. Schuster, M.D., Ph.D., Elizabeth A. McGlynn, Ph.D, and Robert H. Brook, M.D., Sc.D. revealed that autopsy studies showed rates between 35 and 40% of missed diagnoses with most resulting in death. Numerically, this is more than three fully loaded jumbo jets crashing every week with no survivors. That number of airplane crashes would mobilize many commissions, government investigations, and a huge effort to prevent the crashes. Unfortunately, since medical malpractice injuries happen separately and privately, the effect is not the same.

Even more disturbing, these numbers are only based on hospital statistics. They do not include deaths from missed diagnoses or medical negligence that occurred in clinics, private doctors' offices, or other treatment facilities.

Claims filed. At the same time, surprisingly few claims are filed. Only 2 percent of people injured by physicians' negligence seek compensation through a lawsuit (according to a 1991 article in the New England Journal of Medicine). A separate report from the Harvard School of Public Health ("Harvard Medical Practice Study") found slightly higher numbers. Their research found that only one in eight patients that suffers due to medical negligence ever files a lawsuit and only one in sixteen recovers any damages. However, despite the slightly higher percentage, the study concluded, "Our data make clear, then, that the focus of legislative concern should be that the malpractice system is too inaccessible, rather than too accessible, to the victims of negligent medical treatment."

Insurance. Many people do not realize that their physician is not required to be insured. If not insured, there is little hope of collecting compensation if the doctor injures an innocent patient through malpractice. According to the U.S. Congressional Budget Office, medical malpractice insurance premiums amount to less than 1% of health costs.

Local regulation. There is little effective regulation of quality by the state licensing board. Only about 2,000 doctors (one-third of one percent) are disciplined each year. Usually, the charges involve substance abuse or financial fraud. Rarely is a physician disciplined for injuring a patient through medical malpractice.

First, be aware of the statute of limitations. You may have a valid claim, but if you wait too long, the claim is lost even if it is valid. The general rule is that the claim must be filed within two years after the malpractice, or two years after you reasonably should have known there was malpractice. However, there are a number of tricky exceptions, so do not give up just because two years may have passed already. As a general rule, delay helps the other side more than it helps you.

Second, you can generally forget about evaluating the claim yourself, or trying to "work it out" with the doctor or clinic or hospital. Usually, the "real" decision-maker is the doctor's insurance carrier (if your doctor is even insured, some are not), and the doctor's attorney. These people are not paid to help you, or to be candid with you. They are paid to defeat your claim. You need an experienced professional to help you evaluate your claim. Without an attorney, the doctor's attorney and insurance company usually will not take you seriously.

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