Lawyers have been accustomed to being blamed for many of our culture’s ills, and we’ve all heard the endless series of lawyers’ jokes. In fairness, often the damage has been self-inflicted.
In one area in particular over the past decade the criticism has been intense: that of medical malpractice. Whether justified or not, lawyers have become the favorite target of many politicians who blame them for the steep growth in medical costs. It had been argued that the vast increase in litigation alleging malpractice had driven the premiums that doctors and hospitals pay for liability insurance up steeply, particularly in Pennsylvania. This inevitably drove medical costs up since the increases in premium payments are directly reflected in fees doctors and hospitals charge.
Reforms have been instituted to correct what was deemed to be an abuse; perhaps the most important of these was the imposition of two rules requiring anyone commencing a medical malpractice action (a) to file the lawsuit in the county where the alleged malpractice occurred (to avoid “forum shopping” where lawsuits were commenced in counties where juries returned high verdicts) and, more importantly, (b) to file a physician’s “certificate of merit” with a complaint commencing a lawsuit stating that there is a reasonable probability that defendant doctor or hospital has deviated from the acceptable standards of medical care.
The results have been dramatic. In Pennsylvania in 2002, 2,904 medical malpractice lawsuits were filed; in 2010 that number had shrunk to 1,491, a decrease of 45.5%; in Philadelphia the number of such cases had fallen by 70%.
Another factor contributing to a drop in expenses related to medical malpractice is that juries have gotten the “message.” Talk to any lawyer who practices in the field, and he or she will confirm that jury verdicts in favor of defendants (doctors and hospitals) are much more likely.
We have found that getting a physician to certify that there is a “reasonable probability of a deviation from acceptable standards” is not routine, and it often presents an insuperable hurdle. The certifying physician’s license may be put into jeopardy if he or she frivolously issues such certificates; they tend to err on the conservative side. And, of course, that raises the question, have we created too much of a hurdle, thereby denying some legitimate claims?
So, the pendulum has swung, and it is likely that the number of such actions will continue to decline, and jury verdicts will be more modest. As to ever-rising medical expenses, while these changes are unlikely to be the panacea politicians seek, decreased costs of litigation can only help.
You may now hug a lawyer.
— Ken Butera