Mary McMullen University of Kansas School of Law
THE FUTURE OF MEDICAL MALPRACTICE SUITS IN THE U.S
There are 3 major movements that I believe will impact the future of medical malpractice suits in this country. (1) The life or death of Obamacare, (2) the sweeping popularity of damage caps on
medical malpractice cases and (3) COVID-19.
Should Obamacare survive the presidency of Trump, it would impact the future of medical malpractice lawsuits in two ways. First, it would increase the number ofmedical malpractice cases because Obamacare allows a greater number of citizens access to healthcare. As more Americans receive healthcare, it naturally follows that more Americans will receive negligent healthcare. The second is that the Obamacare bill expresses strong support for alternative dispute resolutionwhich will increase the popularity of it’s use. It is even likely that states willenact legislation to require alternative dispute resolution prior to litigation. So while Obamacare would naturally lead to an increase in medical malpractice complaints, the way that those complaints get solved could change significantly. For this reason I believe it is important for upcoming attorneys to be prepared to mediate and have practicallearning experiences in alternative dispute resolution, as the need for litigationis trending downward while the need to resolve disputes outside of a courtroom and without a jury increase. The same is true even if Obamacare does not survive Trump’s presidency. Legislativecomments and movements all seem to trend to alternative dispute resolution,especially since it is viewed as a cheaper and more accessible alternative.
Legislation on damage caps will also have amajor impact on medical malpractice suits. Over half of the states already have damage caps onmedical malpractice suits. Fred J. Hellinger, PhD & William E. Encinosa, PhD, The Impact of State Laws Limiting Malpractice Damage Awards on Health Care Expenditures, 96 Am. J. Pub. Health 1375, 1375-81 (2006). Proponents of damage caps point to cheaper malpractice insurance premiums, avoidance of “defensive medicine”and increased self reporting of errors. Id.Ifind no proof that any savings on malpractice insurance costs are passed on to the recipients of health care or to injured victims. The argument that it avoids defensive medicinepractices falls short for me as well because doctor’s have the same standard of care and same ethical and professional responsibilities regardless of whatmonetary damages they could be responsible for after the fact. The argument that damage caps encourage self-reporting falls short for the same reason, and regardless of the amount of liability they face, their ultimate goal will be to avoid mistakes regardless, or at least should be. Damage caps ultimately protect hospitals, but limit very real damages to for the injured party. After going through some much already, this could deter a very injured, and very deserving client from pursuing their claim altogether. Damage caps ultimately protect tortfeasors at the cost of the plaintiff, and for some plaintiff’s this means that they will never be able to be compensatedin proportion to the injuries and suffering in a way that is really meaningful.
Finally, I reach my the final impactor of medical malpractice lawsuits in the U.S. Just as Obamacare will ultimately increase the amount of people receiving health care, so does the pandemic. But the pandemic also poses increased risk of negligence by doctors who are overworked, ill-equipped and lack pandemic training. Hospitals also lack appropriate equipment and perhaps even medicine to treat all of their patients timely. Other countries have reported facing situations where they must choose which COVID patients to treat altogether.Rumblings of fear of malpracticecases have been in the air since the pandemic hit the Statesfor these reasons and more. As the social unrest in our Page 2country, and distrust of our government continues, the mass demonstrations and objectors of public health orders will increase the cases even more, increasing exposure to negligent health care. With people in financial peril caused by the pandemic, it will be even more important for them to seek compensation for negligent care received as less Americans will be equipped to handle the loss without compensation. As the pandemic continues to surge through our country, it will likely lead to an increase in medical malpractice cases.
MY PERSONAL INTEREST IN PURSUING A CAREER IN MEDICAL MALPRACTICE LAW
Medical malpractice law appeals to me because theattorneys are able to work closelywith their clientsand generally,their clients are people who are well deserving of compensation. Robust representation of clients will ultimately leadto improvements in overall healthcare standards which benefits all of our society. I have a natural ability toconnect with people and I enjoy doing so, so representing individuals as opposed to organizationsappeals to me. I also want to practice in a field that providesa wide variety cases where each claim is different than the one before. I enjoy investigation and research and the nuances thatinherently come withmedical malpracticesuits. I have alwaysenjoyed opportunities to learn about medicine and health care as well but molecular biology killed any desire I had to enter the medical professionlong ago.
