Identifying trends in medical malpractice litigation can pose a problem, as many legal settlement agreements contain a confidentiality provision. However, medical researchers have identified some clear trends over the past several decades.
Trends come and go. However, no matter what changes, one factor remains constant: Having an experienced medical negligence lawyer on your side is invaluable. An attorney understands this complex field of law and can help maximize your compensation.
Understanding Medical Malpractice
Medical malpractice occurs when a doctor or another type of authorized treatment provider fails to provide a reasonable standard of care and, as a result, the patient sustains harm. The treatment provider must have entered into a formal doctor/patient relationship with the victim. Otherwise, the victim might not have a valid cause of action.
The definition of a reasonable standard of care can vary on a case-by-case basis. However, the standard is typically described as the same type and level of care that another treatment provider would provide, assuming they were in the same place, at the same time, and had an equivalent level of training, knowledge, and experience.
How the Courts Approach Medical Malpractice Litigation
To prevail in a malpractice claim, a victim must demonstrate negligence on the part of the physician. This is done by proving that the doctor owed the victim a duty of care, the doctor breached that duty, and, as a result, the victim sustained injuries and other damages. The victim must also demonstrate that they sustained actual damages—economic and non-economic.
Although medical malpractice litigation does commonly occur, the legal system is designed in a way that encourages parties to achieve a settlement rather than filing a lawsuit.
In many cases, physicians and their malpractice insurance carriers agree to settle with the victims. This accomplishes several preferable objectives. First, settling malpractice cases helps to not overburden the court system. It also helps keep costs as low as possible for both parties, as the time and cost of going to trial can be significant. Finally, when victims can settle their malpractice cases, they get their settlement money more quickly. This helps provide the economic boost they need to recover from their injuries.
Trend: Decreased Volume of Medical Malpractice Litigation and Increased Settlement Amounts
Perhaps the most important—and striking—trends in medical malpractice litigation involve the volume of claims filed as compared to settlement and award amounts.
An affiliate of Harvard Medical School, Brigham and Women’s Hospital (BWH), published research regarding the rates and details of malpractice claims paid out by or on behalf of U.S. physicians.
This study demonstrated that in the period of 1992 through 2014, the number of paid claims decreased by more than half (55.7%). During that same period, however, the average value of claims paid increased by 23.3%. Likewise, the number of annual paid claims above $1 million also increased.
The largest claims were paid in the specialization of neurosurgery, as well as the following fields:
- Pathology, and
On average, all claims paid by physicians in a specialized field were higher than those paid out by general practitioners.
The BWH study also looked at trends in medical malpractice claims by physician specialty. The number of claims increased for physicians in general practice as well as for those who specialized in gastroenterology, pathology, and pulmonology.
Trend: Disclosure, Apology, and Offer Malpractice Resolution
One of the most interesting trends in malpractice claims is known as “communication and resolution,” or “disclosure, apology, and offer” (DA&O) programs. Under the DA&O model, doctors provide full disclosure to patients when outcomes are not as expected. Practitioners provide honest communication with the victim, explain the details of what occurred, and identify those components that constitute negligence. The doctor proffers a sincere apology to the victim and makes what is supposed to be a fair offer for compensation.
The idea of this response model is that injured patients receive the acknowledgment of error that they deserve and quick compensation. If they accept the offer, they do not pursue any formal type of claim or issue any kind of demand. The DA&O model also calls for practitioners to encourage injured patients to seek legal representation. Unfortunately, that part of the formula isn’t always communicated well.
Trend: The Most Common Types of Medical Malpractice Errors
Malpractice can be committed by any type of treatment provider, from physicians and surgeons to dentists and psychiatrists. Consequently, victims can experience many types of malpractice. Some of the most common types of medical malpractice are as follows.
- Surgical errors (e.g., wrong patient, wrong body part),
- Diagnostic errors,
- Childbirth errors, and
- Medication errors.
Diagnostic errors have become a significant factor in malpractice litigation, and the problem continues to worsen. Diagnostic errors include missed diagnoses, delayed diagnoses, and incorrect diagnoses. According to the National Academy of Medicine (NAM), U.S. medical practitioners commit upwards of 30 million diagnostic errors every year. In approximately 80,000 of these cases, the victim either dies or suffers a permanent injury or disability.
Another common problem that leads to malpractice injuries involves communication errors. The two most common scenarios in which communication errors take place are provider to patient communication and communication between providers. Multiple factors can contribute to or cause communication errors. However, the research demonstrates that inherent characteristics of the medical field and medical practitioners make communication errors much more likely than they might otherwise be.
Finally, marginalized populations are more prone to becoming victims of malpractice. Race and ethnicity are significant factors. The research shows that racial disparity in medical malpractice is a problem that persists, despite the progress the U.S. has made toward social justice.
Trend: Increasingly Common Medical Malpractice Litigation Types
In many medical malpractice cases, the parties must agree to keep all pertinent settlement details confidential. This fact makes it difficult (if not impossible) to accurately identify and track trends. However, some types of claims have become more common than others.
Surgical Procedures Performed in Office
Outpatient surgical procedures have been common in the U.S. for decades. However, increasingly more medical practitioners now perform various surgical procedures in their own offices. Outpatient surgery centers have the equipment and safeguards in place to handle unexpected complications. However, practitioner office facilities often lack these safeguards. Consequently, doctors may not be prepared to adequately deal with emergencies.
Telehealth & Remote Treatment
The COVID-19 pandemic brought telehealth to patients across the U.S. Even after the threat has eased, patients and practitioners alike are expected to continue embracing the virtual space. Unfortunately, remote treatment may lead to more malpractice claims. In addition, the legal ramifications of telehealth malpractice claims may be especially complex. Depending on where the practitioner was and where the patient was at the time of the appointment, jurisdictional questions may arise.
Nursing Home Malpractice, Abuse & Neglect
Another offshoot of COVID-19 is a decrease in the quality and safety of residential care in nursing homes. Many facilities lack adequate staffing and security. Care homes often lack appropriate processes and procedures for keeping residents safe and healthy. As a result, the number of nursing home abuse and neglect malpractice cases is expected to increase.
Contact a Louisville Medical Negligence Lawyer Now
If you sustained injuries due to the actions of a doctor or another type of practitioner—or if an existing condition worsened—contact an experienced injury attorney as soon as possible.
The aggressive, compassionate legal team of the Gladstein Law Firm, PLLC, understand what you’re going through. We are committed to holding negligent doctors and medical practitioners accountable for their actions. We offer a free consultation and case review to all Kentucky medical malpractice victims. Contact us now to learn more or to schedule your consultation.