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The True Costs Of Malpractice Claims

Wed, 01/06/2010 - 7:33am

Tennessee doctors continue to fend off the vast majority of malpractice suits filed, but the five-year trend is unmistakable, and the price of success seems to grow higher every year.

Physicians and their insurance companies traditionally close up to 85 percent of malpractice cases without paying a penny to plaintiffs, but in the latest year of data available, 2007, the cost of those wins was up 17.5 percent, following an 8.4 percent rise a year earlier.

Of 3,043 cases closed in 2007, just seven went to court, while another 492 were settled out of court. The other 2,544 just died on the vine.

“Obviously, too many medical malpractice suits are being filed,” said general and vascular surgeon Hugh Francis III, a partner at Memphis Surgery Associates. “Tremendous is the cost of defending all these suits. It would be a mistake to underestimate the significance of this financial burden.”

Contending with malpractice suits costs doctors in a myriad of ways, said Steven C. Williams, president and CEO of State Volunteer Mutual Insurance Co., the largest malpractice carrier in Tennessee. Professional time is burned in meetings with attorneys and possibly a trial. Elective procedures are either postponed or turned over to another doctor.

Often it’s the head pathologists and radiologists who take the brunt of the burden. Virtually every patient has lab work and imaging services, so the names of the department heads appear on the medical charts, even though they perform little or no patient care, but having their names there means they are invariably included on a long list of co-defendants. It can cost $7,000 to extract a single pathologist from one case, so it adds up quickly.

Personal injury and medical malpractice are among the most precarious fields of law, and lawyers say they are loath to file frivolous suits on a contingency basis. A suit can drag out for several years, and the attorney doesn’t get his cut until the end.

Tennessee is among the lowest-risk states for doctors, in part, because of a very old legal principle still in use in Tennessee, known as the “local standard of care.” Most states have adopted statewide standards to assess care, but Tennessee cases can still be argued county by county. Basically, this means that defense arguments can be made against any specialists the suing patient may use because “only rural doctors know how medicine is practiced in rural areas.”

Twenty years of bad press about the effect of malpractice suits on health care costs can also predispose jurors against plaintiffs. “Communication between physicians and their patients needs continued improvement,” said Gastroenterologist Robert Kerlan of Memphis Medical Specialists. When that doesn’t work, settlements are often necessary to cut the loss of time and eliminate the risk of a lottery-sized jury award, he states.

“The financial and emotional costs of professional liability litigation are tremendous; trying to avoid lawsuits involves every day of my life, every judgment that I make, and every order that I write,” Francis said. “Is that not sad?”

This is an except of an article written by Scott Shepard, a freelance writer who can be reached at scottbuzz@juno.com. The article appeared in the Memphis Daily News, the full version of which can seen by clicking here.

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