The Sad Facts of Malpractice Suits

I was asked the other day by an elderly statesman about what tests physicians run to avoid malpractice suits. What percentage of medical costs is attributed to these tests? Having been in medicine for 46 years, I can think of no test or procedure which cuts down on the chances of a medical malpractice suit being brought. Tests and procedures are run to produce money for medical institutions and medical personnel, namely physicians who are ordering the tests. As a medical and legal expert once said to me, “The very best physician practicing the very best medicine can still have a malpractice suit brought against him and there is very little that can be done about it.”

One of the sad facts about this is that the attorneys that chase medical malpractice for their income know that if they file a suit without merit they are still likely to be paid quite handsomely by the insurance carrier for the physician even when no malpractice has been committed. The reason for this is simple. Medical malpractice insurance carriers generally feel it is less expensive to settle a suit out of court rather than defend it. Because of this “bean counter mentality” the people insuring against malpractice are also the ones propagating the very process from which they are paid to protect the physician.

I can recall an obstetrician friend of mine who was sued quite a number of years ago recounting his ordeal in malpractice. He delivered a baby who had difficulty at birth and subsequently had neurological deficits. The delivery was normal and performed according to standard obstetrical procedures. In medicine this is called usual and customary care. This means practicing medicine according to the usual standards of care practiced in your community or locale.

In cases such as my friend's, although there is no evidence of malpractice the jury hands out a “pity award” to the plaintiff. Evidence not allowed in this case was the fact that the woman was a welfare recipient her entire life. There is nothing wrong with that. Also not allowed was the fact she had five different children by five different fathers all of which were paid for by society. Also not allowed was the fact she was an alcoholic cocaine using addict who chose not to have prenatal care. All of these were more likely the reason her newborn had neurological deficits. Not allowed in court because they did not pertain to the delivery. The obstetrician involved in this suit never delivered another baby. He had come to the realization that no matter what he did or how he practiced he could not prevent being sued.

The woman in the above case was awarded $5,000,000 and of course never had to pay back anything to society which she had been living on for her entire life and I do not know but would not be surprised if she continued living on welfare.