The Medical Malpractice Crisis: Urban Legend or True Story?

“What’s happening all across this country is that lawyers are filing baseless suits against hospitals and doctors,” began George W. Bush to a room filled with medical professionals and industry allies. “That’s just a plain fact. And they’re doing it for a simple reason. They know the medical liability system is tilted in their favor. Jury awards in medical liability cases have skyrocketed in recent years.”

In this story, lawyers and plaintiffs are not the only ones to blame. There is also the civil jury, the panel of peers that always sides with the plaintiff, that always awards excessive damages.

But is this the case? Is there really a medical malpractice crisis?

According to the data collected and compiled by Trellis Research, there have been very few civil jury trials in Los Angeles County from 2009 to 2018. The number of medical malpractice trials has been particularly low, steadily declining from 30 trials in 2009 to only 3 trials in 2018.

Given President Bush’s speech, readers might also be surprised to learn that the plaintiffs in these trials have rarely succeeded. Instead, the data suggests that juries have quite often aligned their verdicts with the defendant. Whether this result is caused by less sympathetic jurors or defendants habit of attempting to settle out meritorious cases pre-trial is unclear.

Should the medical malpractice crisis be renamed the medical malpractice myth, one propagated by insurance companies, medical associations, and other special interest groups?

Realities are seldom so straightforward.

We can see that even though the number of medical malpractice trials has decreased over the last decade, the total number of medical malpractice filings has been substantially higher. The courts may not have been overloaded with medical malpractice trials, but they have been required to grapple with burdensome med mal motions.

What is happening with these filings? Let’s take a closer look at the data.

The majority of the pre-trial filings for medical malpractice cases are demands for jury trials.

Yet, interestingly enough, throughout Los Angeles County, plaintiffs are most likely to file these demands. This, despite the fact that in practice, plaintiffs seldom encounter success in jury trials.

What might this mean? Perhaps we have been asking the wrong kind of question. The interesting question is not whether or not a medical malpractice crisis really exists. Rather, the interesting question, one that can be answered through legal analytics and analyzing data, involves understanding how legal practitioners navigate through the messy landscape of medical malpractice claims in the first place.

The more we dig into the data, the more each layer of the medical malpractice landscape fills with unexpected surprises. Perhaps for plaintiffs’ (and their med-mal attorneys), success comes not from a jury verdict in their favor, but rather from the very threat of that jury verdict (no matter how improbable), which leads to a favorable settlement — which is perhaps the true victory after all.

Originally published at https://blog.trellis.law.