Insurance companies are in a vast, unorganized yet effective conspiracy to deprive nearly all victims of medical malpractice from any recourse or compensation through the American Justice system. “Independent and non-partisan studies have shown that approximately 100,000 patients die each year in hospitals due to medical malpractice.”
It has come to this, unless your med mal case is worth hundreds of thousands of dollars and perhaps over a million dollars, it is nearly impossible to obtain a medical malpractice lawyer to take your cause of action. Also, unless the medical malpractice is relatively clear, you may not find a malpractice solicitor willing to roll the dice against such a well funded and formidable opponent.
“In other words, between 93 and 98 percent of deaths from medical negligence did not result in any liability payment.” MEDICAL MALPRACTICE: BY THE NUMBERS, Center for Justice Democracy at New York Law School, Emily Gottlieb, Deputy Director for Law and Policy Joanne Doroshow, Executive Director.
The medical malpractice attorney has to float the case costs and only is compensated pursuant to his or her contingency fee agreement if the medical malpractice lawyer prevails after trial and potential appeal. This in itself is a big obstacle for legitimately injured med mal claimants.
This unspoken conspiracy between medical malpractice indemnity companies only permits meaningful access to the judicial system to multimillion dollar cases of doctor, surgeon, nursing or medical negligence that cause grave injury or perhaps death. Of course, if a medical malpractice case is also a wrongful death cause of action as a result of a fatality then there is usually enough damages to warrant a medical negligence death lawsuit.
Hospitals, medical facilities and physicians are also complicit in this vast conspiracy because they do not want to send a message to future victims and negligence lawyers that they will pay claims.
“[T]he Harvard team looked at about 30,000 hospital records in New York and found conclusive evidence of a serious injury from medical malpractice in the records of 280patients. How many of those 280 patients brought a claim? Eight. That is less than 3 percent.”
Insurance companies will rationalize their pathetic actions claiming that they don’t settle such tort claims because the doctor does not agree to the settlement and does not want to compromise his reputation in the community. It is funny how the insurance company forgets about that when they settle many of these claims for huge amounts mid trial over the physician’s or hospital’s objection.
I have heard that some top medical malpractice lawyers accept less then 1 percent of potential claims by injured victims.
Big Insurance’s end game is to make medical malpractice lawsuits so expensive, lengthy and time consuming for victims and their surgical malpractice attorneys that personal injury attorneys will go broke if they accept medical malpractice cases. The med mal attorneys at Allen and Allen state:
“Because medical malpractice cases are so expensive, the decision to pursue one must be made very carefully.” It is not uncommon for a medical malpractice case to take several years and cost the Plaintiff’s medical malpractice negligence attorney over $50,000. Some of these cases cost north of $100,000.
The issue concerning medical malpractice for the Plaintiff’s bar is not just about case costs, it is about immense time and resources without cash flow. A personal injury lawyer also has to think twice before taking a hospital negligence cause of action because of the immense amount of time he will be spending on the claim, taking time and resources away from his automobile, car accident or premises liability practice. Insurance companies are well aware of this and will exploit this as much as possible.
The insurance company exploits this using tactics such as filing and contesting endless, meaningless and sometimes meritless discovery motions. They send over one of their insurance defense attorneys, newly minted, a few days out of law school, to handle dozens of motions they filed in different cases. This low paid and inexperienced lawyer usually has a huge box of files that he knows little to nothing about and he is instructed to contest everything and force the plaintiff’s attorney to sit in court nearly half the day. Sometimes, these lawyer’s force the victims attorney to waste an entire day to have the court determine this particular motion. Much to the chagrin of the motion justice, these insurance motion lawyers are given little settlement authority and wont even compromise on meaningless issues.
Insurance companies are more interested in deterrence, in the future, then in the disposition of the merits of the case at bar.
In some instance, insurance will settle the case right before trial (after years of scorched earth meaningless Rambo litigation) for relatively big money. Likewise, it is not uncommon for an insurance company to settle in the middle of trial for a big money injury settlement
Why didn’t they just pay at the start of the case? Big insurance feels they have achieved their insurance goal by battering the victim and the lawyer to such a degree that it will scare away potential suitors. Insurance companies are petrified and obsessed that a fair, just and expeditious settlement to a legitimate victim will open the flood gates of litigation. When insurance pays on the courtroom steps, right before the trial, they avoid exposure to a potentially huge verdict after having achieved their goal of deterring future lawyers from filing cases to compensate injured victims
The empty suits at the insurance company decided years ago that it is better to throw tens of thousands and sometimes a hundred thousand dollars to engage in unseemly scorched earth, hardball delay, deny, and confuse litigation then to send a message to future victims that they will pay claims fairly.
A top medical malpractice attorney must float tens of thousands of dollars of litigation costs and expenses for years, sometimes as long as 5 or 6 years for a case to wind through the justice system.
Some states have medical liability caps. High case costs combined with these unfair and draconian damages caps further prevented victims from access to the justice system.
The Attorneys at Cornwell and Sample state:
“The caps on the recovery and contingency fee, along with the high cost of litigating a medical malpractice case leads most lawyers to not accept any of these cases. Of the small percentage of lawyers who will consider taking such a case, they only accept those which seem to them to have the potential to result in a large enough recovery to justify the inescapable cost and time associated with a medical malpractice case.”
The lawyer floats these out of pocket case costs with no assurances that his client will ever be paid by the surety company. (A large percentage of case costs is for highly paid medical experts) This is the reason so few attorneys handle med mal cases. The small percentage of attorneys who take such physician tort cases only accept a very small percentage of such cases.
What are the tactics of big insurance?
- Refusal to properly compensate obvious, reckless and blatant negligence causes of action swiftly and immediately.
- Lawyer-up, delay, deny ,confuse and hardball litigation tactics
- Attempt to financially devastate the opposing attorney to win the current case and dissuade lawyers in the future from filing medical malpractice cases.
- Attempt to use financial leverage to crush the injured victim
Insurance companies will schedule endless depositions and retain numerous highly paid experts. They will also file needless motions, seek endless continuances and engage in scorched earth litigation.
They will give little regards to the merits of the case or the pain and suffering of the victim. The primary reason insurance fights each case in hand to hand combat as if its life is on the line is not really Based on the refusal to pay the case at bar but is done with an eye to prevent future cases.
The insurance company wants to send a message to the personal injury lawyer community and to victims: don’t bother bringing medical malpractice cases because we will run you into the mud and try to bankrupt you until you can no longer afford to move forward with the litigation.
Insurance companies are not going to pay medical malpractice cases quickly without a battle royale. In some limited circumstances the liability company will pay quickly if the negligence is extremely obvious and blatant.
Obvious medical mistake includes:
- Wrong side surgery
- Amputation wrong arm or leg
- Leaving sponge or surgical instrument in body
- Mastectomy without justification