NCPA - National Center for Policy Analysis

Physicians Sick Of Malpractice Lottery File Countersuits

July 17, 2000

Physicians have begun to take a stand against what they see as the game of medical malpractice lottery in today's judicial system. Studies have concluded that while malpractice and more specifically negligence by a physician is rare, the rate of awards and/or settlement is not. Negligence is the legal standard used to determine whether a physician committed malpractice.

  • A Harvard University study of over 30,000 cases found only 3.7 percent were considered "adverse events."
  • Even fewer, only 1 percent, were considered to be negligence by a physician.
  • Another study found that 43 percent of malpractice claims resulted in some payment to the plaintiff whether by trial verdict or by settlement.
  • Of those who received payment, 30 percent of the payments were made to plaintiffs despite the fact that the care rendered was not negligent, 16 percent were made in cases that could go either way, and only 51 percent were made to plaintiffs who actually suffered medical injury due to a physician's negligence.

Physician have begun to fight back by filing countersuits in response to malpractice suits they consider to be unjust, mostly when the plaintiff loses. Physicians have sued under a number of different theories such as malicious prosecution, abuse of process, negligence, defamation, infliction of emotional distress and invasion of privacy. None of these theories have proved to be effective and most suits have been summarily dismissed. Thus, with such little success, physician countersuits present little or no threat to malpractice plaintiffs or their attorneys.

Physicians argue that the judicial system will lack credibility until tort reform provides such a remedy under law.

Source : Kyle S. McCammon, "Medicine vs. Law: Medical Malpractice and Physician Countersuits," Medical Sentinel, May/June 2000.


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