The idea that juries sit around awarding hundreds of millions of dollars in frivolous medical liability lawsuits is one of the most pernicious aspects of the malpractice myth. That's because Americans are obsessed with lawsuits across the crime spectrum -- from OJ to Michael to that old lady who spilled coffee on herself and sued McDonalds -- and the idea that we're a culture ready to sue at the drop of a hat is quite enduring. What do medical malpractice torts have in common with those cases? Like the McDonalds coffee woman, who received third degree burns from the coffee and tried to settle for a measly $10,000 for her trouble, medical malpractice suits are prone to reaching celebrity-like status.
The claim that frivolous lawsuits are being brought, and its logical extension that juries are awarding unfair amounts, just isn't supported by the evidence. First, researchers found that only 3-4% of injured plaintiffs sue. It's not possible that we’re seeing rash of frivolous malpractice suits because just not that many people ever get to court.
It's important to realize that a good portion of lawsuits are settled out of court (thus by-passing the hundred million dollar jury awards), and a good portion of lawsuits are dropped. It’s extremely difficult to prove negligence caused injury. That's partly because of the complexity of practicing medicine -- experts must testify if a doctor followed (or didn't) reasonable practice standards. It can also be tough to determine the exact cause of injury, and even then deciding how to assign a monetary value to injury can be very subjective. Researchers took it a bit further though, to be sure that those who are being compensated aren't getting unnecessary amounts.
Despite all these factors, research shows that juries just aren't awarding any more money (adjusting for inflation and the cost of injury) than they did 40 years ago. One of the largest studies of this kind, by RAND, found this:
Our results are striking. Not only do we show that real average awards have grown by less than real income over the 40 years in our sample, we also find that essentially all of this growth can be explained by changes in observable case characteristics and cliamed economic losses (especially claimed medical costs).Most tort reforms call for a cap on damages. But when you see the research it becomes clear: caps on damages are unnecessary at best. While there are certainly instances of frivolous lawsuits and awards, they're clearly not enough to skew the fact that damages have increased less than income. In fact, judges decide in favor of patients more often than juries, and there's evidence that juries actually have a bias towards doctors.
Tort reform will only make it more difficult for patients to sue (and with only 3-4% suing, that's quite an accomplishment), make it harder for the seriously injured to get adequate compensation, and it certainly won't slow health spending. It's a bad deal for everyone except insurance companies and negligent docs.