Malpractice ‘Crisis’ Greatly Exaggerated

12/11/2015 // Hartford, CT, USA // cttriallawyers // Neil Ferstand // (press release)
Michael D'Amico
December 9, 2015

Dr. Edward Volpintesta (Dec. 6 op-ed column, "Reasons for defensive medicine") described defensive medicine as the ordering of tests that are not believed to be medically necessary simply to defend a potential future claim of medical malpractice.

The fallacy is that there is no claim of medical malpractice for the failure to order a test that was not medically necessary. Instead, medical malpractice is the failure to order a test when it is medically necessary. In Connecticut, as in other states, a patient may not bring a medical malpractice claim unless he or she first obtains a written opinion from a qualified physician that malpractice occurred.

So who gave Dr. Volpintesta bad information that has given rise to the defensive medicine he describes? Answer: the medical-malpractice-insurance industry. It stands to profit from scaring doctors into believing there is a medical-malpractice crisis, so as to justify inflated policy premiums.

These powerful and wealthy insurance companies stand to further pad their profits by scaring the public and politicians, via propaganda, to vote for and pass reform legislation that will deny legitimate victims of medical malpractice fair compensation. This propaganda has been so pervasive for so long, even medical schools have been scared into believing our medical students should be told to consider defensive medicine.

Some important facts:

As of 2014, there were approximately 3.6 million Connecticut residents, according to the U.S. Census Bureau.

The total number of inpatients at Yale New Haven Hospital, one of more than 35 hospitals in Connecticut, last year was 78,529, according to the hospital.

The total number of outpatient encounters at Yale New Haven Hospital last year was 1.2 million, again according to the hospital.

Two-hundred fifty medical-malpractice cases — less than one half of 1 percent of all civil filings statewide — were filed between July 1, 2014 and June 30, 2015, according to the Connecticut Judicial Department.

Medical malpractice lawsuit filings in Connecticut have fallen 35 percent since 1994-95, again according to the Judicial Department.

Medical-malpractice-insurance-company underwriting profits averaged 31 percent in 2008-13, according to the 2014 Connecticut Medical Malpractice Annual Report.

Medical-malpractice-insurance companies are making twice the return on net worth than are the property/casualty insurance industry. In fact, the medical-negligence-insurance industry has had seven years of underwriting profit — something unheard of in the property/casualty sector. This is according to the Report on Profitability By Line By State in 2012, National Association of Insurance Commissioners, 2013; A.M. Best webinar, "State of the Medical Professional Liability Insurance Market," May 1, 2014.

So where is the crisis? There isn't one. It is a fiction for profit.

I sympathize with the doctors who have been duped into believing there is a crisis. Health courts are a bad solution searching for an imagined problem. A system of health courts would be extraordinarily expensive for taxpayers and likely unconstitutional, on the grounds of depriving legitimate victims of medical malpractice their right to a jury trial.

Michael D'Amico of Watertown is an attorney and president-elect of the Connecticut Trial Lawyers Association.

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