Medical Malpractice – Gross, Indeed: New Standards for Negligence Fail to Deliver Promised Benefits

Medical malpractice has always been a buzzword for disagreement and controversy, and a new study released by the New England Journal of Medicine seems likely to fan the flames for a fresh round of debate. The issue of medical malpractice is inextricably linked with the high cost of health care and the question of who deserves the blame for that cost. The medical industry would like people to believe that lawyers are at fault, forcing doctors to drive up the cost of health care with unnecessary tests and diagnostics to protect themselves from lawsuits. However, that idea is now being challenged by new research.[1]

The study in question stems from a decade old shift in the medical malpractice policies of three states: Georgia, Texas, and South Carolina. About ten years ago these states began to require a standard of gross negligence in order for emergency room doctors to be sued. The ordinary negligence standard used by most states only requires that patients prove a “failure to exercise reasonable care.” The gross negligence standard adopted by these three states requires that patients prove the physician in question had a conscious disregard for patient safety and took medical actions knowing that they would cause serious injury. This standard has proven all but impossible to meet in all but the most extreme cases, resulting in a 60% drop in medical malpractice cases across the three states.[2]

Now that doctors don’t have nearly so much to worry about in terms of medical malpractice, we should see the cost of health care go down, right? Actually, the study shows that health care costs have stayed constant, with the exception of a miniscule dip in Georgia emergency room costs.[3] The number of diagnostic tests and hospitalizations ordered by doctors has also remained steady. Someone is saving money because of the new gross negligence standard, but it’s not the patients.

Insurance companies benefit enormously from the new law. They continue to receive the same payments for medical costs, and pay out much less to victims of their mistakes. Now, patients in these states who receive an unreasonable standard of care have no recourse, and are still stuck with a pile of medical bills every bit as daunting as it would have been before the switch.[4]

About The Author: Jason Konvicka is a medical malpractice attorney in central Virginia with a proven track record of fighting for the rights of those who have been injured due to no fault of their own. He has been listed as a Best Lawyers in America since 2009 and has been listed in Virginia Super Lawyers since 2006.