It happens almost every day. I receive a call from a person claiming that they have been injured by the act or omission of some health care professional and I have to tell them I can’t help them because the damages suffered to not justify the time and expense of a medical malpractice case.
This has always been a problem, but has gotten worse with tort reform legislation in Tennessee. Caps on damages further restrict access to the courts.
Those in academia are paying attention. Torts Prof recently wrote about a new article by Joanna Shephard tiitled ""Justice in Crisis: Victim Access to the American Medical Liability System."
Here is an abstract of the article:
An often overlooked problem with the current medical malpractice system is the vast number of medical errors that go uncompensated. Although studies indicate that one percent of hospital patients are victims of medical negligence, fewer than two percent of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases. I conduct the first national survey of attorneys that explores medical malpractice victims’ access to the civil justice system. The results from the survey indicate that the economic reality of litigation forces many medical malpractice attorneys to reject legitimate cases. In fact, over 75 percent of the attorneys in my survey indicate that they reject more than 90 percent of the cases that they screen. The attorneys indicate that insufficient damages and high litigation expenses are their primary reasons for rejecting cases and that several tort reforms have reduced their willingness to accept cases. Moreover, the majority of the attorneys respond that they have threshold damage values, below which they will not consider accepting a case. In fact, over half of the attorneys responded that, even for a case they are almost certain to win on the merits, they will not accept the case unless expected damages are at least $250,000. For a case that they are only slightly likely to win, the vast majority of attorneys require minimum expected damages of $500,000 to accept the case. Because of the high cost of medical malpractice litigation, plaintiffs’ attorneys simply cannot economically justify taking cases with damages below these thresholds. As a result, many legitimate victims of medical malpractice are left with no legal representation and no meaningful access to the civil justice system.
The civil justice system is designed in part to provide redress for injuries caused by others. When the system cannot provide redress for injuries with a value of $250,000, the system is broken.
Sooner or later, the health care community will feel the backlash of the artificial barriers its lobbyists have erected in health care liability cases. And the legal community will feel the backlash of not finding ways to make litigation more efficient and less expensive.