Why Victims of Medical Mistakes are Rarely Compensated

Posted By: Tony Baratta | July 21st, 2016

The Pittsburgh Post-Gazette recently reported that medical malpractice jury verdicts have hit a 15 year low statewide in the year 2015. In the year 2004, Pennsylvania juries issued verdicts in 449 medical malpractice cases with 78.4% of those verdicts in favor of the physician or hospital. Contrast that with statistics from 2015 in which there was only 101 verdicts statewide with 78.2% favoring the hospital or medical professional. The Pennsylvania Supreme Court publishes statistics as it relates to jury verdicts county by county.

Statistics for the surrounding counties where I typically file malpractice actions revealed the following statistics for medical malpractice verdicts in the year 2015:

Philadelphia 21 13 61.9%
Montgomery 8 7 87.5%
Bucks 1 1 100%
Chester 6 5 83.3%
Delaware 10 5 50%

The medical community sees these statistics as welcome relief from escalating insurance premiums. Lawyers representing victims view it as evidence that injured patients are being unfairly denied an opportunity for true compensation for their harms and losses.

The statistics reveal that the percentage of verdicts for the defense has remained constant over the years. What has changed is the number of cases brought to trial, with only 25% of cases brought to trial state wide ending with a verdict compared to 10 years ago.

See below a graph showing statewide statistics from 2004 through 2015

Verdicts blog

The legislative changes that occurred around 2004 is key to understanding the change in the data since that time. First, in 2004, a legislative requirement was put into place that an attorney obtain a “Certificate of Merit” from a medical expert who agrees the patient has a legitimate case before it can proceed forward.

A second rule put in place in 2004 requires that lawsuits be filed in the county where the alleged malpractice occurred instead of in any county where the defendant is located. This second rule was put in place because it was perceived that jurors were more friendly to plaintiffs in Philadelphia than any other county.

In my own practice, I am called upon to evaluate approximately 150 potential medical malpractice cases per year. I will file suit in only 5-10 of those cases. The reasons are multi-factorial, but can be boiled down to two significant issues:

1. These cases are always handled on a contingency fee basis, meaning the lawyer does not charge the client for his time, but seeks a percentage of the recovery. The lawyer must also fund the case for years before there is any potential recovery. It is extremely expensive (ranging from $30,000.00 for a one expert case to hundreds of thousands of dollars for a multi-expert case) to litigate a medical malpractice case. Therefore, the damages caused by the malpractice must be monumental or catastrophic. So, a number of cases cannot possibly be considered for litigation because the damages caused, although a mistake was made, do not justify the expense of bringing the claim.

2. As the statistics reveal, winning these cases is extremely difficult. Lawrence Kelly, President of the Western Pennsylvania Trial Lawyers Association was quoted in the Pittsburgh Gazette article as saying “I think the medical community, and insurers as well, have done a tremendous job of creating a jury bias towards these types of cases by painting scenarios in which physicians could abandon whole towns over liability concerns, they have persuaded jurors and legislatures to construct roadblocks.” So, in this environment, the liability proof must be substantial.

In short, in my very small world, I unfortunately see a great deal of medical errors that cause a client harms and losses that affect their well-being, increase their medical costs, reduce their ability to work and affect their enjoyment of life. Telling these clients that I cannot pursue a claim is extremely difficult.  I want to help my clients hold the medical community accountable for its mistakes that cause devastating harm.  Presently a civil lawsuit is the only effective means to do so.  But the expense of bringing these cases, and the fact that such a small percentage of victims win at trial, prevents a lawyer from pursuing anything but the most egregious cases.

Tony Baratta is a trial attorney in Huntingdon Valley, PA who represents clients who have been seriously injured. Tony is the founding partner of Baratta, Russell, & Baratta and a member of the Pennsylvania Brain Injury Association (BPIA). Tony is on the board for the Philadelphia VIP, a member of the Million Dollar Advocates Forum for trial attorneys and voted one of Philadelphia’s Super Lawyers 2008-2015.

BarGraph Source: The Unified Judicial System of Pennsylvania

About the Author

Anthony J. Baratta (Tony) is a trial attorney. He has tried more than 50 cases to Juries in State and Federal Courts and has litigated thousands of personal injury and medical malpractice cases in his 30-year career. Tony is the founding partner of Baratta, Russell, & Baratta and an active board member of the Pennsylvania Brain Injury Association (BPIA). Tony is also on the board for the Philadelphia VIP and performs pro bono work for the Laurel House, a non-profit for victims of domestic abuse. In addition, Tony is a member of the Million Dollar Advocates Forum for trial attorneys, voted one of Philadelphia’s Super Lawyers for the past 14 years, and a 2018 recipient of the First Judicial District Pro Bono Award for the Civil Trial Division.

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