The general public thinks medical malpractice lawyers bring too many cases. The truth is that at least in Florida, the overwhelming majority of medical malpractice cases are never brought. The reason is that the medical profession gets special treatment under the law. The special treatment makes it very hard to pursue a medical malpractice case. One example of special treatment involves medical malpractice cases involving death.

As I discussed in a previous post about wrongful death, in most wrongful death cases, if a person dies with no spouse, their children are entitled to pain and suffering damages. Furthermore, if they have no children, the persons parents are entitled to pain and suffering damages. However, when a fatality is caused by medical malpractice, and the person has no spouse, only children under 25 are entitled to pain and suffering damages. If there are no children or the children are 25 or older, no one, including the parents is entitled to pain and suffering damages.

The harshness of this special treatment becomes clear when you realize that if someone either has no job or makes very little income dies with no spouse and either never had children or their children have all grown up, there are really no damages worth perusing. Basically that means that the medical profession can routinely cause the death of most unmarried people over the age of 55 without the fear of being held responsible for the death.

Posted by Scott Distasio at 7:44 PM | Permalink

Tort reformers always try to blame the innocent injured party for causing unacceptable costs to society. Personal injury lawyers know the person causing the harm is not the injured person. The harm is caused by the negligent person. Eliminating personal injury lawsuits will not eliminate the costs. It will simply require the injured person and or society to pay the costs instead of the negligent person that caused the harm.

Efforts by some state and federal governments to try and eliminate a patient's right to bring a medical malpractice claim provides a perfect example. Tort reformers have convinced many state legislatures to pass laws that severely restrict a patients right to bring medical malpractice lawsuits. According to their logic, the reduction in medical malpractice lawsuits should reduce costs to society. However they fail to address the fact that a reduction in medical malpractice lawsuits will not reduce the amount of medical malpractice that occurs.

A recent study discussed in the New York Times on November 25, 2010 makes the point. According to the study, from 2002 through 2007, in the hospitals that participated in the study, harm to patients was common and the number of harmful events did not go down over time. About 18% of the patients were harmed by the medical care they recieved. In addition, 63.1 % of the injuries to those patients were preventable. In fact, according to the author, many of the injuries were caused by the hospitals' failure to impliment measures proven to illiminate or reduce mistakes.

Clearly, the failure to impliment the safety measures caused the cost to society and not the lawsuits filed to hold the negligent health care providers accountable. Most of the costs will exist whether or not the lawsuit is filed. The real question is who will pay the the costs. The inoccent person inured by the medical care or the negligent healthcare provider that caused them.

Posted by Scott Distasio at 4:44 PM | Permalink | Comments (0)