Of the over one million people injured or killed annually by preventable medical malpractice, only a fraction have their claims reviewed by the legal system. We can’t be sure how small that fraction is — since the health care industry spends millions of dollars every year convincing Congress to frustrate error-reporting — but we know it is small, since only approximately 85,000 medical malpractice lawsuits are filed, less than 10% of those million annual “iatrogenic” incidents. In the bulk of incidents, either the patient (or their survivors) don’t even suspect that malpractice occurred, or they suspect that malpractice occurred and nonetheless choose not to bring a claim at all.

Once we get into incidents in which a patient seeks out legal advice because they suspect malpractice, the vast majority of those cases are resolved without a lawsuit even being filed, much less a payment from the physicians or the hospital to the patient. Trial lawyers (like me) reject the majority of potential malpractice cases that come in; a 90% rejection rate would would be a conservative estimate. Estimates for the claims-per-incidents range from one-in-seven to one-in-twelve.

Obstetrical malpractice cases are no exception. As I’ve written before, in the context of a pediatrician who was the victim herself of obstetrical malpractice:

Obstetrical malpractice cases are difficult and expensive. They take years and hundreds, sometimes thousands, of hours, as well as hundreds of thousands of dollars spent out of pocket to pay for experts and other litigation costs.

Putting aside attorney time, her case would easily cost a newborn seizures lawyer $250,000 just to survive summary judgment. You’ll need an obstetrician to comment on the discharge and the delivery, a pathologist to look at the report on the placenta,  an emergency physician and/or hospitalist to comment on how the hospital handled her hemorrhaging, and a neonatologist to comment on how the hospital handled the baby’s discharge and re-admission. If the defense coughs up some irrelevant expert — perhaps a psychologist, to say the mother had pre-existing undiagnosed depression, or issues with her father, or some other nonsense — you may need to get one of the same to rebut them.

Your paralegal will spend thousands of hours just sorting through the records to give you their thoughts and to get the records to the experts in a presentable and organized form, since the experts bill by the hour. If you are lucky and efficient, you can file all the necessary pleadings and motions, and conduct all the discovery and depositions, in less than 100 hours of work. That’s a generous estimate; you will likely need many times that. In discovery and at trial, the doctors will have explanations for everything, as will the defense lawyers. Your client is just in it for the money. Are you accusing these good doctors of falsifying medical records? That’s outrageous. She’s a liar. Why would the nurses and doctors falsify a medical record? They were trying to help her. It’s her fault.

The pediatrician there saw a trial lawyer who told her she didn’t have a case; there was malpractice all right, but without significant economic damages resulting from a birth injury to the child, the case wasn’t worth the risk of pursuit. Many times, even if there is malpractice, and was damage, it’s a serious challenge to prove that the malpractice caused the damage. (Extremely premature children, for example, are so prone to complications that it’s difficult to separate out the effect of the malpractice and the effect of the prematurity.)

Once we get through the fraction of the fraction of potential malpractice cases — i.e., the small fraction of overall malpractice incidents which resulted in someone seeking legal advice, and then the small fraction of potential malpractice incidents which are actually put into a lawsuit — we enter another black hole of data. There is an extensive amount of data out there reflecting the nature of medical malpractice litigation in America, but it’s is all held by the insurance companies and by the National Practitioner Data Bank, neither of which are too keen on sharing it, so we only have that information in the aggregate.

But what we have tells us a lot. As Public Citizen found in examining the NPDB data,

  • Between 10,000 and 11,000 cases result in a payment to an injured patient or their survivors by way of settlement or conclusion of all appeals annually;
  • The total payments average between $3.5 billion and $4 billion annually, about $11 per person — about as much as we pay to subsidize oil companies drilling new wells;
  • Three-quarters of that money is paid to cases where the patient died or suffered a significant permanent injury.

Then there’s the matter of the >80,000 lawsuits filed and the <11,000 payments made. Plaintiffs typically lose medical malpractice cases. Their cases are dismissed on summary judgment, dismissed on directed verdict, rejected by juries (between 75% and 85% of trials result in verdicts for the physician), dismissed on post-trial motions, and dismissed on appeal. It’s not a cakewalk. That’s why trial lawyers are so selective, why the litigation is so expensive, and why the fees are so high.

“Maybe so,” say the tort reformers, “but what about those eight or nine-figure judgments?”

Indeed, what about cases like the one profiled by New York Injury Cases Blog, “Brain Damage from Medical Malpractice at Birth – $56 Million Verdict, including $22 Million for Pain and Suffering, to be Resolved on Appeal.”

The facts of the case were familiar to attorneys who litigate birth injury cases:

On October 10, 2003, Mary Swanson, then 41 years old, delivered her fourth child, Michael, at a hospital in Mount Kisco, New York. During delivery, shoulder dystocia was encountered (a condition at delivery in which the baby’s shoulder gets hung up on the mother’s pubic bone after delivery of the baby’s head).

Due to the application of force to relieve the dystocia, Michael sustained a brachial plexus injury (known as Erb’s palsy, a usually transient condition in which nerve roots of the spinal cord are damaged and, typically, a child’s arm becomes pulled in towards his body and internally rotated).

Michael’s parents sued the hospital and Mary’s obstetrician claiming that the shoulder dystocia problem was mismanaged, its resolution wrongly delayed and excessive force applied to the baby’s head during nine minutes from delivery of the head until full delivery. As a result, plaintiffs claimed that Michael sustained not only a brachial plexus injury but also asphyxia (loss of consciousness due to too little oxygen) and a brainstem injury leaving him with developmental delays, including speech, language and cognitive function deficits as well as difficulty swallowing and recurrent aspiration syndrome.

The case was by no means a slam dunk. Michael’s problems weren’t diagnosed until he was two years old; that’s not uncommon if a child isn’t being followed by developmental specialists, since only the gross motor delays will really be apparent before then, but it gives defense lawyers and defense experts an opening. Perhaps worse, the original lawyers had themselves, shall we say, misdiagnosed the case, originally alleging only physical injuries common with shoulder dystocia (e.g., bruising), and not the neurological injuries common with
perinatal distress, acidosis, and hypoxia-ischemia.

Then again, there was this part:

There was evidence that the hospital’s records as to this incident may have been changed or altered after the fact. Its original chart was missing and a microfiche of the records was produced that had been prepared almost three years after the delivery.

The Swanson’s attorney weighed all of this information and offered to settle the case against the obstetrician and her practice group before the verdict for $2.7 million, $600,000 below their policy limits.

They said no. Then came the verdict.

Unsurprisingly, the jury was less than impressed with the hospital’s creative recordkeeping:

During deliberations, the jury sent out a note asking if they found the hospital not liable for physical injuries to Michael, but should pay restitution for sloppy recordkeeping and/or falsification of documents, could they still award damages. The judge told them “no” but thereafter they returned their verdict for the plaintiffs. The defense claims that this note shows the jury’s stated intention to impose restitution and penalize the hospital for improper reasons.

$56 million is a lot of money. Bigger than any single physician’s insurance policy. Bigger than most hospital insurance policies.

And what happened then?

Shortly after trial, the Swansons accepted a settlement offer from the doctor and her group representing their full malpractice insurance policy limits of about $3,300,000.

A little under 6% of the overall verdict.

I don’t know what will happen with the claim against the hospital, which has appealed. It doesn’t take much to get a large obstetrical malpractice verdict reversed, like I wrote before:

Medical malpractice cases truly are different. Little issues that routinely happen in other trials, like a highly-knowledgeable witness slipping from factual testimony into opinion testimony, take on exaggerated importance in medical malpractice cases. When you’ve got an unqualified witness arguably opining on the standard of care — no matter how close they were to the action, no matter if they are also a “medical professional” — you should thank your lucky stars the testimony is going in at all and should be more than willing to accept a contemporaneous instruction in exchange for allowing the testimony.

John knows the New York cases; even if the appellate court upholds liability against the hospital, it will reduce the verdict considerably:

Should liability against the hospital be upheld, it’s quite likely that the appellate court will hold that the $22,000,000 pain and suffering award is grossly excessive and slash substantially in view of recent relevant appellate court cases dealing with injuries and conditions that appear to be much worse than those dealt with by Michael Swanson, such as cerebral palsy, and which determined that pain and suffering damages should be reduced to the $3,000,000 to $4,250,000 range.

The verdict will then be reduced by the $3,300,000 settlement. If John’s right, that means the hospital could be liable for anywhere between $0 and only $950,000.

The total payout to the plaintiff seems likely to be below $4,500,000; if you give any credit at all to the plaintiff’s case, as the jury did and the trial judge upheld, that’s certainly not absurd, outrageous, obscene, or any of the other adjectives applied to large verdicts.

But you don’t hear about this reality from the tort reformers, the health care industry lobbyists, or the media. You just hear “$56 million verdict” and then the band plays on.

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