This week’s Massachusetts Lawyers Weekly reported the fewest number of medical malpractice cases in almost a decade. The 485 cases filed in 2008 represented a drop of more than 30% from filings in 2000. The lessening of medical malpractice cases represents both good and bad news. The good news is that some of the diminished number of cases may have resulted from reduction of certain types of medical errors. Ironically, some – though certainly not all – of the improvements in medical care were encouraged by medical malpractice cases seeking justice for harm caused by poor medical practice.

The bad news is that much of the decline in the number of cases are due to factors independent of improved medical practices. Although difficult to quantify, it is unlikely that medical errors have dropped 30 plus percent in less than a decade. About ten or so years ago, the insurance industry began a brilliantly-conceived campaign to convince potential jurors that medical malpractice lawsuits were the cause of prohibitive insurance premiums that supposedly drove good doctors out of practice. At the same time, the insurers adopted an unstated policy to rarely settle a malpractice case until discovery is complete and a trial date assigned. Such practice makes all medical malpractice lawsuits very expensive to pursue. As a result, many legitimate cases involving less than catastrophic injury are simply never brought because no lawyer can afford to take the case. Although there is a bad faith insurance practices law in Massachusetts that should expose insurers who fail to promptly settle a case they know to be valid, to treble damages, our state Supreme Court has interpreted the law so favorably to insurance companies as to gut it.

There never was a medical malpractice litigation crisis – except in the media hysteria created by the insurance industry. As I have written elsewhere on this web site, the insurance industry’s claim that malpractice litigation was responsible for exorbitant insurance premiums was always a lie. The independent study by the Government Accounting Office (the “GAO”) is still the definitive study of the alleged “crisis” in medical malpractice litigation. The GAO concluded that medical malpractice suits were not the cause of either rising premiums or any alleged “doctor flight” (see the entire study at: GAO Medical Malpractice Report.). Doctors are not done an injustice by being subject to lawsuits for their negligent errors. If their insurers were respecting our justice system, their insureds, and injured victims, instead of their bottom line, then many legitimate malpractice cases would settle early in the litigation process, sparing the doctors the emotional strain of a lawsuit. Instead, by depressing the ability of people injured by medical negligence to access the courts, the insurers have earned a victory for their investors and CEOs on the backs of all of us.