Surprisingly, that has not been the case. According to data from Medical Liability Monitor, the overall frequency of lawsuits introduced against physicians has, on average, remained steady since the report.

  What does have physicians worried are the ever-increasing awards bestowed by juries in malpractice cases-the so-called “runaway verdicts.” In 1999 one in four verdicts in medical malpractice cases was $1 million or more (see chart).

  And they don’t stop at a mere six figures. A recent case in Philadelphia involving a neonate born at 26 weeks’ gestation grabbed news headlines when the jury awarded a verdict of $100 million. An award that high will probably not be upheld by judicial review, but even a fraction of that amount could be devastating.

  Runaway verdicts are especially out of control in Pennsylvania. In 1998 there were 19 awards exceeding $1 million in that state; in 1999 there were 33. Although Philadelphia and the surrounding seven counties represent only 11% of the state’s population, malpractice verdicts for this area amounted to $336 million, more than 87% of the state’s total.

  Worse than the inevitable, local effect, however, is the ripple (or tidal wave) effect. Jurors in other areas cannot help but be tainted by sky-high awards offered in similar cases. The ripple effect also extends to settlements, says attorney Jim Saxton, chair of health-care litigation at Stevens & Lee in Lancaster County. “Plaintiffs’ lawyers will say, ‘Last year there was a $100 million verdict. I’m not going to settle this case for just $4 million-I want $10 million.’”

  Rising liability insurance premiums are an inevitable result of runaway verdicts. Premiums for physicians and hospitals nationwide are up anywhere from 30% to 100% this year. According to the Pennsylvania Medical Society (PMS), premiums there are 40% to 70% higher than those in surrounding states.

  The $100 million award is symbolic of the malpractice liability war being fought in Pennsylvania between plaintiffs’ attorneys lobbying for patients’ rights and the medical profession, which argues that the state’s best doctors will take flight if the situation doesn’t improve.

  “The sudden jump in premiums is forcing some doctors to give up high-risk cases to avoid meritless lawsuits,” said PMS president Carol E. Rose, MD. “More senior doctors are choosing to retire early, while younger doctors are electing to practice in neighboring states with more medically friendly environments.” Or, as a recent graduate of Philadelphia’s Thomas Jefferson Medical College put it, “I want to practice anywhere but here.”

  Damage caps for malpractice cases are another aspect of tort reform that are already helping to put a damper on runaway verdicts in states like California and Texas. So far, 22 states have limits on noneconomic damages in malpractice or personal injury cases, according to the American Tort Reform Association. No more such laws are pending, however, due to strong lobbying efforts by plaintiffs’ attorneys in other states, an ATRA spokesperson said.

  Malpractice attorneyson both sides of the fence have identified an epidemic that seems to be a major factor in driving up jury verdicts: patient dissatisfaction with the customer service aspect of health care.

  At the Crittenden Medical Insurance Conference held recently in Washington, prominent Chicago plaintiffs’ attorney Philip Corboy Jr. speculated that the escalating verdicts are a backlash resulting from anger-anger on the part of the patient who has been treated poorly from a service standpoint, combined with anger on the part of jurors who had similar experiences.

  “Too often simple lapses in service such as rudeness, inattentiveness, and failing to return a phone call make a big impact both as to the particular patient who becomes a plaintiff and as to the jury hearing the case,” Corboy noted.

  Defense lawyer Jim Saxton agrees. “When a plaintiff brings up a service lapse or communication problem, jurors can be seen nodding their heads ever so slightly,” he admits. “We can defend against the malpractice being alleged and bring in board-certified experts who will testify that patient’s treatment was consistent with the standard of care. But in case after case that we’re bringing to court, what tends to sway the jury are the lapses in service. It would be naïve to think these dissatisfaction issues do not affect the verdict.”

  That’s the good newsin all this, from Saxton’s viewpoint. “Most malpractice lawsuits are still preventable,” argues Saxton, who is coauthor of Preventing Malpractice. The proof, he says, is in cases in which the seemingly most culpable doctor isn’t named in a suit at all, because of a strong doctor-patient relationship. “Patients have come to realize that they deserve compassionate care and prompt and efficient service, and plaintiffs’ attorneys have become keenly aware of the litigious advantage when it is not provided.”-Thomas L. Leaman

© 2001 Physician’s Weekly, Inc.