The big lie

Medical providers' calls for malpractice
insurance "reform" hide the ugly truth

By David Baker
Posted Sunday June 14, 2009

Once again the medical profession and its liability insurers are swamping the airwaves with commercials calling for malpractice insurance "reform". By this they really mean making it even harder to get compensation for injuries caused by negligent providers. Strangely though, nowhere do they suggest reducing the appalling financial and emotional toll caused by preventable deaths and injuries.

It has to be the most inherently dishonest advertising campaign ever aired.

So, the next time you hear one of these announcements, consider the following:

* Ninety-five percent of all medical malpractice claims do not go to trial.

* It often takes the filing of a lawsuit just to force the medical provider to disclose enough information to find out what happened and if there is a basis for a claim. At that point, some cases are dropped - which the providers will then cite as yet another frivolous claim filed by a greedy lawyer. If one defendant is dropped from a suit, even if there is ultimately a payout, the insurer will count it as a baseless claim.

* Of the 5 percent of claims that do go to trial, the medical provider wins seven out of 10 cases.

* Of the ones they lose, the big awards the providers keep yelling about are not for a death, but for coping with crippling injuries that require years of sometimes round-the-clock care. And often these awards will be sharply reduced on appeal – something the doctors and insurers somehow forget to mention.

* Lawyers demand such a big cut of an award because 1), they get paid nothing for the time they put into the cases they lose and they usually have to also pay the costs of those cases and 2), because the insurers, with their huge resources, do everything they can to drive up the plaintiffs' lawyer's costs. Medical Liability Mutual Insurance Company – which insures 80 percent of providers in New York - has over 100 law firms on retainer. If there are three defendants in a case – even if all three are insured by the same company – the insurance company will assign three law firms, thus requiring three times the work to respond to each demand. Authorizations for the release of medical records have to be signed and notarized times three instead of once (and often are never used). Information that could be demanded in one discovery document will be split up over three or four demands. At the same time, demands to them for relevant information that is certainly in the provider's possession will be ignored until the plaintiff is forced to spend time and money serving a motion on all the defense lawyers and then waiting for a hearing and hoping an impatient judge will compel a response.

All of this in an attempt to swamp the plaintiff's lawyer in a blizzard of paper. Some judges will put a stop to such conduct but others just don't want to be bothered.

* The insurers fight virtually every claim, even when they know their insured caused harm. The goal is to win not on the facts, but by obstructing access to them and by outspending and wearing down the plaintiff. If that doesn't work the insurance company will settle, but only at the last minute, after forcing the plaintiff's lawyer to spend a great deal of time and money preparing for a trial the insurer knows all along it will never risk.

Naturally, by this point it takes far more money to settle the case than it would if liability had been admitted at once. But the tactic works for the insurer because the media looks the other way so the public has no idea what is going on, and it stops other claims getting to a settlement and many more from even being filed.

And it is still not enough, so we get these insurance industry-sponsored calls for "reform", which means throwing even more obstacles in the path of people injured by the medical profession.

Meanwhile, an estimated 120 people die each day and thousands more suffer serious injuries from preventable medical errors in the U.S., most of which don't result in even a claim, still less any compensation, while the insurers that are publicly traded – Pro Assurance (PRA) American Physicians Capital (ACAP), First Professionals Insurance Company (FPIC) and American Physicians Services Group (AMPH) – are all reporting healthy earnings and profits even in this terrible economy.

This assessment comes from studying the situation over the past five years, and from handling my case myself, during which I have filed motions, taken depositions, attended hearings in judges' chambers and served and responded to many discovery demands.

I've seen how these "caring" medical providers really operate and it's ugly.

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