The exhoribant cost of medical malpractice litigation--who's the culprit?

One of the claimed justifications for the “tort reform” proposal of putting caps on damages in medical malpractice cases is that this drastic step will reduce the exorbitant sums of money that is being spent on medical malpractice litigation. There is no question that the cost of medical malpractice litigation is exorbitant. But before you can design effective steps to address this problem, you first need to determine who is responsible for the problem in the first place. The fact is it is the Defense not the Plaintiff’s side which has created this problem.
To understand why that is so, ask yourself a fundamental question: which side benefits from medical malpractice litigation costing more and taking longer to resolve----the plaintiff or the defense? Does the injured plaintiff patient who has limited financial resources and his or her attorney who is being compensated strictly on a contingency fee basis derive any benefit if the medical malpractice litigation costs more or requires more time? Clearly not.
On the other hand, does the medical malpractice insurance industry with its extensive financial resources derive any tactical advantage over its limited resources plaintiff adversaries if the litigation in which they are engaged requires substantial out of pocket expenses? And do defense attorneys, who are paid on an hourly basis and whose total compensation will depend not on outcome but how much time they spend on a case, stand to gain financially if medical malpractice litigation lasts longer and is more time consuming? You don’t need CSI to know that the answer to both of these questions is a resounding yes.
If defense has the motive to make medical malpractice litigation more expensive, do they actually do it in defending malpractice cases? Unfortunately, yes. Why would they do it? Deterrence. Their goal is to make medical malpractice cases so unprofitable due to the huge costs involved and the risk-reward analysis so dicey that an injured patient will not be able to find an attorney who will take their case.
Do the insurance companies actually engage in this practice of making medical malpractice litigation as expensive and risky as possible in order to deter other cases from being pursued? Once again, unfortunately, the answer is yes. Most of the insurance companies do it quietly. Some do it openly. An example of the latter is Pro Assurance, a national medical malpractice liability insurance company which makes no bones about their business strategy of seeking deterrence by increasing the costs of litigation. Pro Assurance follows a policy of forcing virtually every medical malpractice case they defend to trial, regardless of the merits. A defense panel review of a case will conclude the case is defenseless. The doctor involved prefers to settle. Pro Assurance will still force the case to trial because of its “drive the costs up” policy.
This, of course, is contrary to the best interests of society, the legitimate rights of the injured patient to an affordable venue to resolve their legitimate claims, and the goals of our judicial system which seeks to reduce not lengthen litigation, reduce not increase litigation costs, and resolve cases on a reasonable basis through mediation, not trial.
How do you stop the medical liability insurance companies like Pro Assurance from snubbing their nose at the financially disadvantaged injured patient, society and our courts? There is no easy answer. But the starting point is to focus on the culprit, the medical liability insurance industry and companies like Pro Assurance, not the injured patient plaintiff and the attorneys who are willing to represent them. And for sure, caps on damages are not the answer.















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