For years, I’ve written about the prevailing myths about medical malpractice law, from the falsehoods about defensive medicine to the extraordinary economic damage caused by malpractice itself. Contrary to what the insurance companies and hospital lobbying groups keep saying, “defensive medicine” is simply a myth (if a given test didn’t make a patient substantially safer, doctors wouldn’t gain anything by doing it). The damage caused by malpractice — even when measured in purely economic terms, ignoring the non-economic harms and losses — dwarfs the cost of the malpractice legal system, including all the lawyers and all the settlements and verdicts.

Recently, the new statistics for medical malpractice filings and jury trials in 2012 were released, and those numbers revealed a couple of important points.

First, the odds at trial are heavily stacked against patients. In 2012, 133 malpractice cases went to a jury trial, and 79.7 percent of them resulted in defense verdicts. I suppose there could be valid reasons why 4 out of every 5 jury verdicts go in favor of the doctor or hospital — maybe the strongest cases are all being settled before trial, leaving only the weakest cases behind — but it’s hard to say that with a straight face when those figures mean that malpractice defendants have better odds winning in a courtroom than the odds a casino has winning its own games.

It’s hard to deny that plaintiffs are losing trials left and right thanks to years of relentless tort reform propaganda designed to mislead jurors about the nature of malpractice and its effects. It sure seems like some counties have particular problems; consider this paragraph from a recent Legal Intelligencer article:

In Montgomery County, all 19 jury verdicts were in favor of the defense; the same goes with the seven verdicts in Chester County. No Bucks County case made it to a jury, according to the statistics, and six of the eight verdicts in Delaware County were in favor of the defense.

There were 34 malpractice trials in the counties around Philadelphia and plaintiffs won merely two of them. In Philadelphia County, long a target of the insurance industry, defendants won 51.9% of jury trials. Once again, so much for Philadelphia being a “hellhole” for defendants: in what kind of a “hellhole” does one win more frequently than they lose?

We know from a 2006 Harvard Medical School study (which I’ve discussed before, such as here) that, for whatever reason — tort reform propaganda? unfair laws? — juries tend to err against the patient. As the Harvard study found, while only one-tenth of paid claims did not involve malpractice, one-quarter of bona fide medical malpractice victims did not recover any compensation. Applying those same ratios to Pennsylvania jury tries tells us that, for every 100 medical malpractice jury trials, there will be two plaintiffs who wrongly recover compensation, and twenty who are wrongfully denied compensation, while a dangerous doctor walks away from responsibility. It’s like a horribly distorted version of Blackstone’s maxim — “It is better that ten guilty persons escape than that one innocent suffer” — reformulated to protect negligent doctors and promote insurance company profits: “it is better that ten insurance companies avoid responsibility than one insurance company pay an unwarranted claim.”

Second, even the malpractice victims who win are recovering a lot less compensation than they did in the past. Pennsylvania has strange priorities when it comes to funding healthcare: our Governor has steadfastly refused to allow Medicaid expansion (which denies us a $3 billion annual economic boost, 35,000 jobs, and health care for a half million citizens), while the state runs the MCARE fund, a socialized government fund that provides half of the malpractice insurance coverage in the state. All doctors have to have $1 million in malpractice coverage; they pay a private company for the first $500,000, then MCARE picks up the next $500,000.

In 2003, MCARE hit its high watermark, paying out $379 million for claims against health care providers sued for malpractice; since 2007, though, it has paid out between $150 million and $200 million per year ever since. Even if we double that number to reach the overall malpractice claims paid annually — which isn’t quite right, because MCARE doesn’t even start until after the other insurer has paid over $500,000, which is rare enough — then, putting the number into perspective, it’s about $24 to $30 annually per Pennsylvania resident, a small fraction of the cost for state-minimum car insurance. For a comparison to health care, Pennsylvania spends about $1 billion annually on “potentially preventable” hospitalizations for “acute and chronic conditions such as urinary tract infections and uncontrolled diabetes for which hospitalization might have been avoided with timely and effective outpatient care and disease management.”

Third, we have no idea how much money insurance companies are making from malpractice insurance premiums. About a week ago, The Legal Intelligencer made an heroic effort to unpack insurance data to see the effect of the changes in medical malpractice liability law from a decade ago, but ran into a serious problem: those very same medical insurance companies that cry the loudest about the need for tort reform also refuse to make public the data that would tell us the most about the malpractice system. They only barely reveal premium data, they don’t reveal payout data at all, and they just convinced the Pennsylvania General Assembly to pass a new law that frees them from filing even annual reports with the Insurance Department.

So the next time you hear someone complain about a “malpractice liability crisis” in Pennsylvania, ask them this:

  • if every malpractice victim is required to have an expert witness with credentials equal or better to the defendant testify under oath that the defendant doctor violated a basic safety rule (as they are), why do patients have worse odds in a courtroom than in a casino?
  • how much would you add to your annual health care expenses to be ensured a chance at appropriate compensation if you were injured? $30? $50? $100?
  • why should the laws favor malpractice insurance companies that won’t even reveal how much money they’re making from the favorable treatment?