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					                                                                                     The Trusted
                                                                                      Victims of

The truth about medical negligence claims
By Eugene M. Moen, J.D., Paul W. Chemnick, J.D., and Patricia K. Greenstreet, R.N., J.D.

         eaths and serious injuries       prosecute the case. To prevail in a         obstaclEs to bringing
         resulting from preventable       medical negligence case, the claimant       a claim
         medical errors are a major       and his/her attorney must prove,
                                                                                           Thus the obstacles to a medical
problem in this country. Independent      through expert medical testimony,
                                                                                      negligence claim are many. To
studies estimate 90,000 people die        that the injury or death was caused by
                                                                                      justify the high risks and expenses of
each year in hospitals alone because      medical negligence. Many physicians
                                                                                      bringing the case, the potential for
of such medical errors. This toll in      are unwilling to even review a
                                                                                      large damages must exist. Credible
human loss is the equivalent of 600       potential claim for a patient’s attorney
                                                                                      and reputable health care providers
airplanes, with 150 passengers each,      and even fewer are willing to testify
                                                                                      must be persuaded the case is strong
crashing every year. If only a fraction   at trial that another physician was
                                                                                      enough to justify testifying against a
of such crashes occurred, it would be     negligent. Because local physicians
                                                                                      fellow health care provider. Once the
treated as a major national tragedy       often know one another, or would
                                                                                      case is filed, the claimant and his/
leading to a huge public effort to        be subject to peer pressure, it often
                                                                                      her attorney will face the unlimited
prevent such human losses in the          is necessary to find out-of-state
                                                                                      resources of a large insurance company
future.                                   physicians willing to serve as experts.
                                                                                      defending the doctor or hospital.
                                          This multiplies the cost of obtaining
     Despite this enormous human                                                      Finally, when the case comes to trial
                                          expert testimony.
toll, the number of medical negligence                                                the decision will be made by a jury
cases filed each year in Washington           It is much easier for the health        that, by and large, respects physicians
State total only about 450. Why so        care provider and his/her attorney to       and may believe that people who
few lawsuits? One reason is that          find experts to support the defense.        bring medical negligence claims
only a small percentage of people         Many local physicians are happy to          and their attorneys are playing the
even know whether a major injury          step in to help a fellow physician or       “litigation lottery.” These obstacles
or a death was caused by medical          a local hospital that has been sued.        and juror attitudes account for the
negligence. Health care providers         There is a common myth about                low success rate of medical negligence
are rarely forthcoming about telling      “hired guns” serving as experts for         cases that go to trial. In Washington
patients and their families that          the injured patient, but the opposite       for the past ten years, that rate has
an injury or death was caused             is more often true. Because the             been less than 10 percent.
by negligence.                            claimant has the burden of proof in a
                                                                                          Jury attitudes leading to a poor
                                          medical negligence case, he/she must
                                                                                      outcome may have been manipu-
                                          present reputable expert testimony
                                                                                      lated by insurance companies and
ExpErt tEstimony                          to even have a chance of prevailing.
                                                                                      their allies. They have convinced
    A second major reason is that         That means an intensive search
                                                                                      many people that “frivolous” lawsuits
few attorneys are willing or able         for credible clinicians (physicians in
                                                                                      are common and have caused many
to take such a case. Medical neg-         private practice) or well-published
                                                                                      physicians to give up their practices.
ligence cases are notorious among         academic physicians is often
attorneys for a low success rate          necessary.
and the huge investment needed to

The Truth About Medical Negligence Claims     continued

In fact, for the reasons outlined above,
it is so difficult to bring a strong and
meritorious case that no attorney
with any sense would file a frivolous
lawsuit. Nationally, the amount of
medical negligence case payouts
declined by 15.4 percent between 1998
and 2005. The number of physicians
per capita practicing in Washington
State increased by 2.4 percent every
year between 1993 and 2003, while
the population grew by only 1.7
percent per year. Rather than
declining because of malpractice
costs, hospitals and physician
practices have been growing as more
facilities are built or expanded and
more physicians move to Washington

Eugene M. Moen, J.D., Paul W. Chemnick,
J.D., and Patricia K. Greenstreet, R.N.,
J.D., are partners in the Seattle law firm
Chemnick Moen Greenstreet, where their
practices are limited to medical negligence