Today’s Legal Intelligencer tells us what we already know: in Pennsylvania and New Jersey, patients’ right to compensation for injuries caused by medical malpractice is dying. Not a quick death, mind you, like the death of patients’ rights in Texas (a punishment insurance companies and medical associations are trying to inflict upon New York), but a slow death.

I use the word “death” because that’s what it often what it takes to qualify for a medical malpractice lawsuit these days. If a patient wasn’t killed or permanently injured by the malpractice, then often it doesn’t matter how outrageously negligent or reckless the doctor was, because a lawsuit isn’t worth the financial risk to any lawyer who might take the case.



In Pennsylvania (here’s one of my prior posts about Pennsylvania medical malpractice tort reform), even though every single medical malpractice lawsuit filed has to be supported, at all times, by the testimony of a qualified physician who currently practices in the same field as the defendant — an expensive requirement that makes it difficult to find experts in the first place, given how specialized medical fields are and how many specialists know each other, even specialists on opposite sides of the country — defendants win more than 80% of cases taken to trial.



The current climate in Pennsylvania’s courtrooms is forcing many of the state’s plaintiffs firms to be more selective in the medical malpractice cases they take on, and also has them looking to areas like mass torts and class actions for new business.

Nearly eight years after the state enacted medical malpractice reform measures and in the wake of one the worst economic downturns in history, the number of plaintiffs verdicts has continued to dwindle in many venues statewide, leading several of Pennsylvania’s largest plaintiffs firms to screen those cases more rigorously.



Civil lawsuits typically measure the damage inflicted by a death in terms of its economic cost. There is room for non-economic damages, but after a generation of insurance-industry funded “tort reform,” even winning, much less winning, recovering economic damages, and recovering non-economic damages, is difficult these days. That’s a problem when some cases, like birth injury claims, can cost a quarter-million or more in expert fees and litigation costs just to get to trial. A slip and fall in a hospital costs over $25,000 in expert fees to pursue, because it occurred in a hospital.



Sometimes even permanent injury isn’t enough to make a lawsuit feasible. Scarring, disfigurement, loss of mobility, and constant pain — all common injuries caused by malpractice, yet often not enough, by themselves, to justify spending tens of thousands of dollars retaining an expert for testimony and thousands of dollars for medical records and depositions, not to mention hundreds of hours on the case.



Sometimes even killed isn’t enough. Remember the economic damages; when an elderly patient dies from a botched surgery performed by an unsupervised resident who are just learning the procedure (a situation I’ve seen many times before), there’s often no recourse for the family, because the case likely won’t recover more money than it would cost to pursue. If medical malpractice lawyers took all these cases, they would be swiftly bankrupted.



This isn’t an issue about one lawyer or one firm finding it hard to win medical malpractice cases; we have no problem winning malpractice cases, even in counties outside of Philadelphia. The lawyers and firms quoted in the article, too, are more than up to the task. These cases are just harder, longer, more expensive, and riskier than they used to be.



As a business matter, our firm will be fine, as will all of the firms mentioned in the article. We will restrict our medical malpractice cases to those with extraordinarily large damages, like birth injury and cancer misdiagnosis cases, and focus our efforts on other legal fields, both within the big picture of personal injury and in entirely different fields, like infringement lawsuits.



But what the tort reformers have never understood, or have deliberately ignored, it’s not about us.  It’s about putting injured patients and their families back to where they should have been, about how medical malpractice causes over $20 billion in economic harm each year, yet the entire malpractice system — including all attorneys’ fees on both sides — is only around $4 billion each year, which means that most victims of medical malpractice go completely uncompensated. It’s about improving the practice of medicine by making that fraction of physicians who practice beneath the standard of care accountable for their negligence, and how, solely to avoid lawsuits, one labor and delivery ward brought their delivery malpractice rate down to zero.


It’s not really a loss for trial lawyers if medical malpractice liability is restricted to a tiny fraction of catastrophic injury cases. It’s a loss for everyone.

Read more about our medical malpractice and birth injury legal services.

  • MEM

    The last paragraph sums up well what medical malpractice litigation is “about”.
    Yet, even you – a warrior for the injured – so easily misspeak – you can never “put patients and families back to where they should have been.”Especually those cases you say your firm will continue to select (like birth injury).
    This type of wording gives the “tort reformers” their ammunition. Since you can never bring a baby back from the grave, undo the CP, or brain damage, or repair the childhood of a grieving sibling – aren’t you trying to change behaviors so others will not have the same fate and those whose fate is already etched in granite a dignified memory?
    In changing behavior, will your profession be capable of changing behavior and business acumen to meet the changing tide forced on all by the ongoing misapporpiration of funds in healthcare delivery?
    What will the new model be?
    [Mary — you’re entirely right about never putting anyone back where they should be. Thanks for commenting.]

  • Donna

    I don’t understand the system, but when I was permanently injured in surgery my surgeon told me to go to my family physician that she did not know what caused my injury and she was the wrong person to ask. I was to return to work in two weeks after surgery but ended up being off 6 months. Going from doctor to doctor, test after test to figure out what was wrong with my arm. Why is it that the surgeon is not responsible for these charges? It would have been so simple, morally, and ethical to let the patient know what to expect with the new injury they caused rather then to send me out the door in constant pain and deny their mistake.