Limiting damages in medical malpractice cases — what most people think of as “tort reform” — could become a hot topic again if Georgia legislators finally try to reimpose the caps thrown out by the state Supreme Court in 2010. Reformers, of course, say the threat of multimillion-dollar lawsuits prompts doctors to practice defensive medicine, needlessly costing our health-care system billions.
Critics say the caps effectively reduce access to the justice system by making malpractice cases less attractive to plaintiffs’ attorneys. But judicial access could hardly be lower than it is under the current system.
That’s the upshot of a new study by an Emory University law professor, who suggests another feature of today’s jackpot justice — the high cost of pursuing a malpractice case — already prevents most people injured through medical negligence from having their day in court.
“The vast majority of attorneys reject the majority of cases they screen,” says Joanna Shepherd-Bailey, author of the new study, “Justice in Crisis: Victim Access to the American Medical Liability System.”
In fact, Shepherd-Bailey’s survey of plaintiffs’ attorneys across the nation found they tend to reject more than 90 percent of the potential cases brought to them.
The American Bar Association reports the cost of litigating a med-mal case ranges from $50,000 to $500,000. Based on her own research and others’, Shepherd-Bailey says a good rule of thumb for the cost of taking a case to trial is $100,000.
Because most plaintiffs’ attorneys work on a contingency-fee basis, they tend to take a case only if they expect to win it, and to win it big. If the cost of taking a case to trial is $100,000, and a lawyer charges a contingency fee of 33 percent, he has to feel confident in winning a verdict of at least $300,000 just to break even.
Even in many cases in which the patient died, Shepherd-Bailey said during a recent press conference at the state Capitol, “damages often are not high enough to be worthwhile for attorneys to take the cases.”
The result is less than 3 percent of actual victims of malpractice, not counting those who file frivolous claims, end up being compensated, she said. The people least likely to secure legal representation are the very ones held up by defenders of the old system as being in need of protection: the poor and the elderly, groups whose low incomes tend to dampen the damages juries award them, thus making them less attractive to attorneys.
That’s not my idea of an equitable system.
The answer isn’t to award even higher damages; history proves that approach just drives up the cost of litigation and exacerbates the problem. It’s to find a different approach.
I wrote about one alternative almost a year ago: a move to a workers compensation-style administrative court. This would put the focus back on determining whether someone was harmed, ensuring doctors and hospitals were aware of the problem, and compensating real malpractice victims.
The big awards at the top would still be curbed, with the salutary effect of reducing the costs of defensive medicine. But a lot more than 3 percent of real victims would stand to get some compensation.
In light of Shepherd-Bailey’s findings, Georgia’s legislators would do well to give the idea a serious look next year.
(Note: This column originally ran in the print edition of the AJC on Sunday, Oct. 7. I did not post it online at the time because I was out of the country and commenting was in moderation; I thought it would be better to wait until I returned and a discussion could take place on the comment thread.)
– By Kyle Wingfield