There is a common misconception that lawyers regularly file frivolous medical malpractice lawsuits and that further tort reform is needed to make malpractice lawsuits even more difficult to pursue. Lawyers that concentrate in medical malpractice, and academic institutions that have studied this issue, know this argument is fundamentally flawed. In reality, if any lawyer regularly filed frivolous medical malpractice lawsuits, that lawyer would go out of business very quickly. Indeed, medical malpractice lawsuits are actually quite difficult to successfully prosecute. There are several reasons for this, including the increased costs involved in pursuing a medical malpractice lawsuit, the decreased willingness of doctors to consent to settlement, and as a recent study confirms, the decreased willingness of juries to return a verdicts for the plaintiff.

Unlike a typical personal injury case, medical malpractice cases are often very expensive to prosecute. In Illinois, as in many other states, a medical malpractice lawyer cannot simply file suit against a doctor or hospital. The medical malpractice lawyer must first obtain a report from a qualified physician knowledgeable in area of medicine at issue who has determined, after review of the medical records, there is a meritorious bases for filing a medical malpractice suit, along with the reasons for that determination. This is requirement, alone, helps prevent frivolous lawsuits. Most medical experts or consultants require a retainer of several thousand dollars before even agreeing to review a case. In many instances, the expert will report back saying they do not believe the case is meritorious. If the expert does find the case meritorious, there are many additional expenses that will result between filing suit and trial. Specifically, most medical malpractice lawsuits require at least a dozen depositions. Some of these depositions will entail expert witnesses the plaintiff must retain to testify at trial (in addition to the initial medical expert/consultant) on all disputed medical issues. The disputed medical issues in most medical malpractice case include arguments over whether the doctor was negligent (or deviated from the standard of care) and whether that negligence was the cause of the patient's injury or death. In addition to being paid to review the medical records and later to prepare for deposition, the plaintiff (or plaintiff's lawyer) must pay the medical expert to give their deposition. This typically costs between $450 and $1,000 per hour. Finally, if the case does not resolve without a trial, these experts must be further compensated to prepare for trial and then testify at trial. In the end, a medical malpractice case can easily cost a plaintiff and their lawyer in excess of $75,000 before the case is resolved--one way or another. In large cases involving multiple defendants, $100,000 or more in costs is not uncommon.

In addition to the costs of prosecuting a medical malpractice case, the behavior of insurance companies has made these cases increasingly difficult to successfully resolve. For example, many insurance companies have substantially raised the premiums doctors must pay for medical malpractice insurance. The reasons for the rise in premiums are beyond the scope of this article (though they are largely connected to stock market fluctuations rather than any changes in medical malpractice payouts). On top of these increased premiums, insurance companies will also further raise a doctor's malpractice premium if the doctor is subsequently sued and then agrees to settle the case. As result, doctors are now increasingly reluctant to consent to settlement because they do not want their already high insurance premiums to be raised even further.

Finally, a recent Massachusetts study has confirmed the vast majority of medical malpractice cases that are tried result in a verdict for the defense. After examining more than 10,000 medical malpractice claims across the country from 2002 to 2005, the study found that 80% of medical malpractice jury verdicts are for the defense. Because juries have become increasingly hostile toward medical malpractice lawsuits in over the last few years, the percentage of defense verdicts is probably even greater now. As for the likelihood of a case resolving without trial, this is also unlikely according to the study. Of medial malpractice cases filed, 54% are ultimately outright dismissed without any settlement. For all these reasons, the deck is stacked heavily against a plaintiff succeeding in a medical malpractice case. To pass more laws that would make these cases even more difficult to prosecute could effectively close the courthouse door to nearly all victims of medical malpractice.
Medpage Today, Docs Win Most Malpractice Cases At Trial, May 15, 2012.