The opposition to justice – regrettably termed “medical malpractice reform” by the media – proponents who want to make medical malpractice lawsuits unfeasible, often point to litigation costs as a burden on the healthcare system that must be eliminated. Putting aside that study after study concludes that litigation costs are not a major contributor to healthcare costs, is the reality that litigation costs are largely in the control of medical malpractice insurers.

The medmal insurers will rarely settle a case involving death or catastrophic injury until a trial date has been set. By that time, most of the costs of litigation has been spent on discovery, experts and legal fees to the defense lawyers. While undoubtedly true that some cases are not fully understood until discovery is completed, the question of whether medical negligence caused harm can be determined in most medical malpractice cases from the medical records. Moreover, hospitals often convene a peer review panel to learn what happened after an unexpected medical catastrophe. Although the results of the peer review panel are (shockingly and regrettably) shielded by statute from the victim, his family and lawyer, the results are conveyed to the insurer.

Yet, even in cases in which a peer review panel probably concludes that medical negligence caused the patient’s injuries, the insurer often instructs defense counsel to prepare for trial – the goal being to see whether the case might be defensible despite the insurer’s private knowledge that no defense should be mounted. Plaintiffs’ lawyers are a practical breed. They understand the dangers of trial even with a strong case. There is value in an early and fair settlement. The medical malpractice insurers, however, prefer to discourage the bringing of cases by making them prohibitively expensive for plaintiffs. Rather than cutting the cost of litigation by settling as soon as possible, cases in which they know negligence occurred, they drive the costs of litigation upward unnecessarily, then claim that those costs to which they contributed as a matter of policy, are reasons why access to the courts for victims of medical negligence should be curtailed.