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A Streamlined Medical Malpractice System Is Good for the Health of Society

Jennifer B. Goldstein

September 30, 2014 

There has been a significant reduction in the number of medical malpractice actions brought in Connecticut in the last 10 years — but those cases that are brought reveal important details of common medical errors. They ultimately promote patient safety and lead to beneficial institutional change.

A 2005 law requires that before a medical malpractice action may be instituted, the injured party must file a certificate of good faith and an opinion letter from a “similar healthcare provider” (a healthcare provider in a field similar to that of the potential defendant) certifying that there appears to be evidence of medical malpractice. The opinion letter must include a detailed basis for the similar healthcare provider’s opinion.  Since the law took effect, the number of malpractice cases filed in Connecticut has dropped 20%, to an average of 292 per year from an average of 364 annually.

In addition, medical malpractice cases are usually pursued under Connecticut’s contingency fee system. A typical contingency fee agreement may provide that an attorney will advance the costs required to prepare and pursue a case. Such sums may include costs for the initial evaluation of a case based on a review of medical records and expert consultations as well as ongoing expenditures for expert compensation, depositions and discovery. Typically, there is no recovery of costs if the case is not successful; if it settles or if the plaintiff prevails at trial, the attorney is reimbursed for costs in addition to receiving attorneys’ fees. Based on these costs, and the length of time that often elapses before a lawsuit concludes, legal counsel is not usually willing to undertake a case unless there is strong evidence of actual malpractice, significant injury or death and an excellent chance of success.

The effect of both the 2005 law and the contingency fee structure has been to eliminate the vast majority of frivolous claims and to allow only potentially meritorious claims to be pursued. This result is good not only for the participants in the process — the medical professionals, hospitals, medical practices, patients and attorneys — but also for society as a whole. Medical malpractice lawsuits and the instances and details of medical errors that they uncover often promote future patient safety and important institutional change.

For example, malpractice suits serve to identify the most common types of medical malpractice. These may include failure to diagnose; failure to perform appropriate testing or treatment; surgical errors; birth injuries; and anesthesia errors.  Hospitals routinely incorporate information from lawsuits and from closed litigation files into their own patient safety efforts.  More than 95% of hospitals use information from medical malpractice lawsuits to improve the quality of the medical care they provide, according to a New York Times opinion page editorial, “Learning from Litigation,” by Joanna C. Schwartz, based on a study she conducted.

Indeed, rather than having the often-parroted detrimental effects of driving up insurance premiums, encouraging doctors to practice “defensive medicine” and the like, malpractice lawsuits lead to a healthier society overall. Because the medical malpractice system has been streamlined by the adoption of the 2005 Certificate of Good Faith law and the inherent financial disincentives built into the contingent fee structure, malpractice suits are able to target the most common and egregious medical errors. This can only be good for the ultimate health of society.

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