Greedy Trial Lawyer
Malpractice Settlements Fairer To Medical Providers Than To Patients - Honest
Category: Seeing Clearly Now
Our fair and balanced president, George W. Bush, has explained ["I am the Explainer"] how medical providers are regularly extorted into paying outlandish sums to settle meritless malpractice claims:
Doctors and hospitals realize... it is expensive to fight a lawsuit even if it doesn't have any merit. And because the system is so unpredictable, there is a constant risk of being hit by a massive jury award. So doctors end up paying tens of thousands, or even hundreds of thousands of dollars to settle claims out of court, even when they know they have done nothing wrong.
The truth, not surprisingly, is quite different.
The Fairness of Malpractice Settlements
Is this claim [let's call it the Bush Extortion Theory] correct? The strongest empirical support for it comes from the 1996 findings of the researchers who directed the Harvard study of New York hospitals. They concluded that the merits of a malpractice claim have no bearing on the likelihood of a settlement. They even suggested that the entire adjudicative process is "an expensive sideshow" in which settlement is really driven by damages, not negligence.The widespread reliance of both tort critics and the mass media [and the Explainer] on this single prestigious study is unfortunate. Its findings are decidedly inconsistent with the substantial body of empirical data accumulated over the past several decades.
Those studies demonstrate, contrary to the Harvard study, that settlement outcomes are directly correlated with the strength of the plaintiff's case.
Over the past quarter of a century, more than a dozen studies have collected data on malpractice settlements. With only one exception, they have consistently shown that plaintiffs with strong cases are more likely to receive a settlement payment than plaintiffs with weak cases. When strong cases settle,
the average payment is substantially larger than the average payment in weak cases.Moreover, the data on malpractice settlement strongly suggests that liability insurers possess a palpable advantage in bargaining power. On average, malpractice claims settle for less than their expected value. The most likely sources of that bargaining power are the defendant's superior risk tolerance,
better access to information, more experienced attorneys and insurance representatives, easier access to expert witnesses, and the incentive to fight low-odds claims vigorously. Defendants probably gain additional bargaining power from trial lawyer awareness that malpractice claims are very hard to win at trial, even with strong evidence of negligence.The overall performance of the settlement process should be reassuring to those physicians who are willing to listen. Quality of care drives settlement outcomes. To the extent that settlement outcomes depart from the merits, the discrepancies usually favor malpractice defendants. Although physicians may find it hard to believe, it will be hard to design an evenhanded adjudicative process that treats them much better.
From an article by Philip G. Peters, Jr., University of Missouri-Columbia School of Law
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