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For over a decade, proponents of tort reform have argued medical malpractice reform is needed to reduce spiraling healthcare costs. If these reforms were implemented, tort reformers promised reduced healthcare costs. Opponents of tort reform argued medical malpractice reforms would have no significant impact on healthcare costs, as medical malpractice lawsuits account for less than 1% healthcare costs. So, who was correct?

According to recent figures, the total number of medical malpractice payouts on behalf of doctor fell to its lowest level in a decade–down 28% since 2003. In addition, the total value of medical malpractice payouts is also significantly down. However, the nation’s healthcare expenses did not followed suit. Instead, healthcare costs have risen a startling 58% in the last decade. This confirms that medical malpractice costs have no appreciable impact on healthcare costs. Indeed, if medical malpractice costs were a major driver behind soaring healthcare costs, the substantial reduction in medical malpractice payouts over the last decade should have significantly lower healthcare costs.

In 2012, the total number of medical malpractice payouts was 9,379 compared to 16,565 in 2001. In 2012, the total value of medical malpractice payouts was $3.14 billion versus $4.41 billion in 2003. Despite these significant reductions in medical malpractice payouts, healthcare costs over doubled in the last decade.

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Going through a surgical procedure can be a nerve-wracking event. As a patient, you put your trust in your surgeon’s experience and skill to provide you with excellent care. But even in the best situations, complications can occur–either during the operation or following the procedure, sometimes leading to medical malpractice lawsuits. While doctors and patients alike hope to avoid any kind of surgical errors, hospitals have been shown to gain financially from post-surgical complications.

A new study of a group of southern hospitals reveals that the “contribution margin,” or profit per patient, is higher when patients have one or more complications following surgery. The study’s senior author, Dr. Atul Gawande from Brigham and Women’s Hospital and the Harvard School of Public Health, emphasizes that this information is not to suggest that hospitals are counting on surgical complications to bring in more money. The real problem lies in the way hospitals are paid for patients covered by Medicare or private insurance versus those who pay out-of-pocket or are covered by Medicaid.

Researchers evaluated the hospital group’s financial information over the course of caring for over 34,000 patients in 2010. Close to 2000 of those patients experienced one or more complications following surgery. Privately insured patients who experienced no complications netted the hospitals an average of $17,000 of profit; for those with one or more complications the profit jumped to an average of $56,000. Comparatively, hospitals lost money in all surgeries involving Medicare patients and patients paying out-of-pocket, regardless of complications.

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Doctors who work in high-risk specialties, like surgeons, are practically guaranteed to face a medical malpractice claim during their careers, according to a 2011 study by the New England Journal of Medicine. The study, which analyzed malpractice claims from a large liability insurer over a period of 14 years ending in 2005, found that 99% of doctors in high-risk specialties, like neurosurgeons, thoracic-cardiovascular surgeons, and general surgeons, were likely to face a claim by age 65. In contrast, only 75% of physicians in low-risk specialties could expect a claim during their career.

Annually, only 7.4 % of doctors across all specialties faced a malpractice claim, according to the study, but within that percentage there was a significant variation between specialties. Neurosurgeons were most likely to face a claim at 19.1%, with thoracic-cardiovascular surgeons and general surgeons close behind, at 18.9% and 15.3%, respectively. Less likely to face a claim were lower-risk specialties like family medicine (5.2%), pediatrics (3.1%) and psychiatry (2.6%). Additionally the study found that within the percentage of doctors facing claims annually, only 1.6% of the claims were compensated.

In regards to payment of claims, the study discovered that there was no correlation between the specialties with the highest number of claims and the highest average payment. For example, although neurosurgeons faced the highest number of claims in a year, their average payment was calculated at $344,811, as opposed to the average payment for a claim against a pediatrician, calculated at $520,924. Additionally, payments exceeding $1 million, defined in the study as outliers and accounting for less than 1% of all payments, were mostly attributed to lower-risk specialties including obstetrics/gynecology, pathology, and pediatrics.

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When a patient goes to a doctor or hospital, he or she puts their health and well-being in someone else’s hands and expects the best care possible. While this is the case in most situations, unfortunately doctors and healthcare providers can and do make mistakes–this is known as medical malpractice. When these mistakes have devastating or even tragic consequences, patients and family members may feel the need to hold health professionals responsible for their negligence and file a medical malpractice lawsuit. While patients need to have some form of recourse for conduct that falls below the standard of care, the amount of time health professionals spend dealing with medical malpractice lawsuits can affect patients and doctors across the entire industry.

A recent study of the malpractice claims records of more than 40,000 doctors, published in Health Affairs, found that most claims took nearly two full years from the beginning of the lawsuit and nearly four years from the actual event to come to resolution. If a case resulted in payment to a plaintiff or involved more serious patient injuries, the suit often took even longer to resolve. The study also examined how much of a doctor’s career is spent on open claims. The findings showed that an average open claim takes four years of a doctor’s time as he or she works through the lawsuit, with certain specialists, like neurosurgeons, devoting even more of their professional lives to legal issues.

Drawn-out legal battles can have adverse effects on patients as well. A medical malpractice case that successfully creates change in a doctor’s actions, a facility’s philosophy or even throughout the industry can benefit many patients. But if the lawsuit is tied up in court, these improvements are delayed as well. Studies also show that patients would prefer that physicians acknowledge medical errors and apologize for the mistake early in the legal process rather than deal with a lengthy claim that could delay compensation.

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Welcoming a child into the world is a happy time for a family but, even with the best possible care, problems can arise. When a birth injury occurs due to a medical malpractice, the consequences can be devastating to the child and the family. A recent study conducted by the federal Centers for Disease Control and Prevention found that in the years 1999-2009, birth injury and complications including kidney failure, respiratory distress, and cardiac arrest related to childbirth increased by 75%. Even the days immediately following childbirth proved less safe, with severe complications more than doubling during the same time period.

Demographic changes can account for some of the increase in complications. Many women are delaying parenthood until their late 30s and early 40s and experiencing issues that go along with advanced maternal age. The steady rise in obesity in the U.S. means that more expectant mothers are overweight, so their health may be compromised even before their pregnancies. Chronic conditions, such as diabetes or liver disease, can also put women at higher risk for complications throughout pregnancy. However, the most common cause of death after childbirth, severe bleeding, or hemorrhage, can affect even healthy women with no history of problems during pregnancy.

Danielle Dargatz, a 25-year-old Milwaukee woman, had experienced a healthy pregnancy and wasn’t considered high-risk for complications when she delivered her daughter in 2012. Unfortunately, following the birth she began hemorrhaging and her doctor was unable to stop the bleeding with medication and other traditional measures. A surgical team was called in to perform an emergency hysterectomy. Ms. Dargatz’s story has a happy ending, but some women and their children aren’t as lucky.

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Very few of us have jobs in which there are no distractions. When distractions occur, they often impact our ability to perform our job effectively. According to a recent study, doctors are also not immune to the adverse impacts that distractions have on job performance. Specifically, the study found that distractions during surgery significantly increased the rate of surgical errors by residents.

As reported in the Archives of Surgery, participants of the study consisted of 18 general surgery residents from Oregon Health & Science University of Portland. Each of the 18 general surgery residents was required to perform a simulated laparoscopic cholecystectomy, which involves removing the gallbladder, with and without distractions. The commonly cited distractions used during surgery were expected movements seen by the observer, a ringing cell phone answered by the observer, conversations between the observer and a third party unrelated to surgery, noise from a dropped metal tray, and a question about a topic unrelated to the surgery.

Out of 18 surgeries, distracted residents made eight medical mistakes. Residents who were not distracted made only one surgical error out of 18 operations. The authors of the study concluded that realistic operating room distractions and interruptions greatly increased the likelihood of surgical mistakes–at least for novice surgeons. This study is important because it shows unnecessary distractions and interruptions significantly increase the rate of adverse patient outcomes and, by extension, the rate of avoidable medical malpractice lawsuits.

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Many of us have seen a handwritten prescription by a doctor and wondered how anyone can read the writing. In most instances, the pharmacist is able to decipher the writing or they will call the doctor’s office for clarification. However, poor penmanship by doctors can lead to medical malpractice, including medication errors. In fact, there have been many medical malpractice lawsuits where a patient died as a result of a medication error from a doctor’s poor penmanship.

A well-known example of how a doctor’s poor handwriting can lead to tragedy occurred in Texas over a decade ago. Because of a doctor’s poor penmanship, a pharmacist filled Pendil (a blood pressure medication) rather than Isordil (a medication for heart pain). As a result, a Texas wife lost her husband when he ingested the wrong medication, suffered a heart attack, and died. After she filed a medical malpractice suit, the jury determined the doctor’s poor penmanship caused the medication error which, ultimately, lead to her husband’s death. Thus, the jury’s sole basis for finding the doctor negligent was his poor handwriting.

Poor penmanship by doctors is an unfortunate problem that has not gone unnoticed by the medical community. Indeed, the American Medical Association (AMA) has warned doctors about their penmanship and urged them to improve this skill. Over the last decades, there have been multiple AMA policies urging doctors to improve their handwriting. These policies have also advised doctors to also include the “purpose” of the prescription “to avoid confusion on the part of either the pharmacist or patients.” At Cedars Sinai in Los Angeles, doctors are encouraged to take handwriting courses to improve their penmanship. At Indiana University, the medical school finds penmanship so important they include penmanship training as part of their curriculum medical students.

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As with any cancer diagnosis, patients who are told they have breast cancer are frightened and need information. The best person to provide this information is their doctor. The patient’s doctor must educate the patient about their condition and available treatment options including surgery. After all, informed consent must be more than signature on a consent form the day of surgery. However, according to a recent study published in the Journal of the American College of Surgeons, half of early-stage breast cancer survivors lacked basic information about their disease and treatment options. As a result, the study concluded many doctors fail to provide their breast cancer patients valuable information necessary for them to make an informed decision about their treatment options. As a medical malpractice lawyer, I have handled my share of informed consent cases. However, I was even surprised by the results of this study showing that many doctors, perhaps close to half, fail to provide their patients critical information they need to make an informed decision about their breast cancer treatment options.

Lead by lead researcher, Dr. Clara N. Lee of the University of North Carolina School of Medicine, Chapel Hill, the retrospective study evaluated the decision making process of early stage breast cancer patients regarding surgical treatment. Surveys were mailed out to adult women with a history of early-stage invasive breast cancer treated at one of four academic medical centers: The Dana-Farber Cancer Institute, Boston; Massachusetts General Hospital, Boston; University of California, San Francisco; and University of North Carolina, Chapel Hill. Based on answers to basic questions about their disease and treatment options, patients answered only half their questions right (52%), demonstrating these patients had a large knowledge gap regarding their disease and treatment choices.

Because study data was collected an average of 2 ½ years after the patient’s surgical procedure, researchers recognized that some patients are likely to forget some information over time. However, the information that was forgotten was simply too basic, according to researchers, to be simply forgotten. For example, only half of breast cancer survivors from the study knew the survival rate was the same for breast-conservation therapy and mastectomy. Likewise, breast cancer survivors who underwent a partial mastectomy routinely did not know the local recurrence rates (compared to women who had a mastectomy).

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Patients are increasingly turning to Ambulatory Surgical Centers (or ASCs) for surgical procedures performed outside of the traditional hospital setting. There are several benefits to ASCs. They are generally less expensive than hospital surgery’s, permit patients to go home the same day of surgery, and are often more luxurious than hospital. Today, 65% of all surgeries are now outpatient making ASCs a popular alternative to hospital surgeries. However, ASCs do have some drawbacks. One significant shortcoming to ASC is their ability to manage serious anesthesia errors and complications which are generally more dangerous outside of a hospital.

With virtually all same-day surgery procedures, the most significant risk is from the anesthesia. Although there are many forms of anesthesia, general anesthesia poses the greatest risk of serious injury or wrongful death. Indeed, most medical malpractice lawsuits stemming from anesthesia error involve general anesthesia. Common general anesthesia complications are from aspiration, changes in vital signs, and adverse reactions to anesthetic.

Regarding adverse anesthetic reactions, the most significant and potentially fatal condition that can develop is called malignant hyperthermia (or MH). This occurs when a patient’s body temperature rapidly increases and causes muscle rigidity. With proper management, many patients will experience a full recovery. Without proper management, patients can and do die from MH.

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