MetroWest Daily News
At trial, doctors have upper hand
By Jon Brodkin/ Daily News Staff
Sunday, June 25, 2006 - Updated: 02:19 AM EST
Every time a jury awards a multimillion dollar payment to a patient harmed by a doctor, critics decry the supposed proliferation of frivolous lawsuits from patients looking to cash in by suing physicians.
Yet a Daily News analysis finds that patients rarely prevail in malpractice suits against doctors.
Only five plaintiffs who have sued doctors for negligence at Middlesex Superior Court since 1998 have been awarded payments by judges or juries (see box). Eighty-eight plaintiffs had their claims dismissed after a trial during the same time period, a Daily News review of court records found.
Massachusetts Medical Society spokesman Frank Fortin said he wasn’t surprised by the small number of jury awards in Middlesex County because doctors usually prevail in malpractice cases throughout the state. But the group is still lobbying the Legislature to make the malpractice system more favorable to doctors.
Juries are already reluctant to rule against doctors, in part because Massachusetts’ stellar reputation in medical care makes it hard to believe a doctor could have made a mistake, said Russell Pollack, an attorney at Campbell, Campbell, Edwards and Conroy in Boston.
"Even though we’re a liberal state the juries are conservative in that they look at the evidence long and hard," Pollack said.
Strong negligence cases often do not go to trial because malpractice insurers offer settlements if they think the doctor will lose, he said.
Patients rarely sue hospitals in Massachusetts, because state law limits negligence payments from nonprofit hospitals to $25,000, an amount that can be exceeded by the cost of pursuing a case. That type of limit does not exist in New York and Connecticut, where Pollack also practices law, he said.
Victims of medical negligence may soon have an even tougher time seeking compensation for their injuries.
Lt. Gov. Kerry Healey filed legislation in May to enforce a limit on non-economic damages of $500,000 in negligence cases, reduce interest rates on malpractice awards so doctors guilty of negligence don’t have to pay as much, and change the burden of proof during pre-trial hearings to make it more difficult for claims to proceed.
Healey’s bill is the latest in a line of proposals to limit the rights of patients harmed by negligence, said Rep. Peter Koutoujian, a Waltham Democrat who is co-chairman of the Joint Committee on Public Health.
"All too often we’re speaking about these multimillion dollar awards while we’re forgetting people who are severely brain damaged or paralyzed," Koutoujian said.
The Massachusetts Medical Society is lobbying on behalf of Healey’s bill, arguing that jury awards and settlements are driving up malpractice insurance rates, forcing doctors to leave Massachusetts for friendlier states.
"It’s been shown time and again that when malpractice premiums are high, the physician workforce shrinks, and patients have less access to the care they need," the group’s president, Dr. Kenneth Peelle, said in a news release.
Because doctors usually prevail at trial, physicians say the main problem for them is the number of large settlements in which doctors pay patients to avoid a trial. A total of 461 medical malpractice cases filed since 1998 in Middlesex Superior Court were settled before reaching trial.
Malpractice insurers tend to offer settlements when they believe there is a high risk of losing at trial, and patients usually take what they are offered because juries typically side with doctors, lawyers said.
But the vast majority of patients seeking compensation from doctors either never file a lawsuit or end up with no money, lawyers say. "Out of every 100 cases I look at, I turn down between 97 and 98," said Leonard Simon, a Waltham attorney who has been filing medical negligence lawsuits for more than 30 years.
Under a state law passed in 1976, malpractice suits cannot go forward unless an outside physician reviews the case and concludes there was negligence, according to Simon. That outside opinion is reviewed in front of a medical tribunal before the case can proceed, he said.
Studies have shown about two-thirds of malpractice lawsuits end without any payment to a patient, he said, and more than 90 percent of complaints decided at trial in Massachusetts are dismissed.
"The public has been brainwashed into thinking that there is a crisis which causes physicians to leave the state," he said. "Juries feel they have to be protective of doctors."
Doctors, though, point to studies that show they are being harmed financially by the growing size of settlements.
The total dollar amount of annual malpractice payments in Massachusetts jumped 50 percent from 1994 to 2003, when adjusted for inflation, according to a report by the state Board of Registration in Medicine. More than $1 billion was paid out in malpractice cases during that period. The average malpractice payment in the state is $431,016.
But the high costs of malpractice insurance may not be the fault of payments to patients. The number of annual malpractice payments has begun to decline in Massachusetts, dropping 17 percent between 2001 and 2003, according to the latest figures from the state medical board.
Yet malpractice insurers continue to raise the rates they charge doctors. According to Lt. Gov. Healey, insurance prices have risen 87 percent since 1999 and will rise 5.9 percent in 2007.
A study by the National Bureau of Economic Research in Cambridge found that malpractice payments are not the driving force behind increases in insurance premiums. Industry competition and the insurance underwriting cycle are what drives prices higher, the 2004 report said.
Some doctors have left this state because of rising malpractice insurance premiums, but Massachusetts has the highest number of doctors per capita in the country, according to a 2003 study by the Business Council of New York State and 1997 U.S. Census figures.
While the malpractice system pits patients vs. doctors, some lawmakers hope to develop a less adversarial system that would provide financial relief to a greater number of victims.
"It’s only the very sensational cases that get the attention of attorneys," said Sen. Richard Moore, an Uxbridge Democrat and co-chairman of the Joint Committee on Health Care Financing. "The bulk of the cases where an injury has occurred usually are never addressed."
The medical profession has a "code of silence" that prevents doctors from admitting errors because that could be used against them in court, Moore said. Some states are giving doctors and hospitals legal protection when they admit mistakes and provide the extra care a patient needs as a result of their errors.
Moore has filed legislation to accomplish this in Massachusetts, he said. He also wants to create a separate court for medical malpractice cases in which judges are skilled in medical issues and expert witnesses are hired by the court instead of plaintiffs and defendants.
"Most people aren’t looking to hit the lottery by suing their own doctor," Moore said. "We have to find a system that addresses everybody that gets injured, not just a few that are likely to have the big payouts."
Jon Brodkin can be reached at 508-626-4424 or jbrodkin@cnc.com.