How Can We Fix This?

Patients with valid medical malpractice claims are routinely denied access to the justice system because the harm they suffered is not sufficient to justify the substantial cost and risk of pursuing a lawsuit. Pursuit of a malpractice case can easily cost $50,000 to $100,000 in out-of-pocket costs and much more in the value of time devoted by the lawyer helping the patient.

Consider the hypothetical patient who is given the wrong medication due to a preventable mistake and, as a result, spends two weeks in the hospital and misses work for one month before making a full recovery? Assume further that the patient has lost $5,000 in wage, paid $7,000 in deductibles and co-pays for medical care while his health insurer has paid $28,000 of the cost of hospitalization. Add $10,000 for pain and suffering, and the patient has a valid malpractice claim for $50,000, of which $28,000 would be payable to the health insurer.

Most attorneys would not handle this case because the cost of doing so would be prohibitive due to the costs associated with obtaining medical records and expert review prior to commencement of suit, plus the high cost of medical malpractice litigation once the case commences.

Although one might think that the case could be handled in the less-expensive setting of an informal small claims court, that would not be the case. In Minnesota, small claims court does not have jurisdiction over claims exceeding $15,000 and, in the case of patients injured by medical malpractice, the Minnesota Legislature has chosen to bar those claims regardless of dollar value from small claims court under Minn. Stat. Section 491A.01, Subd. 4(11).

We should question a justice system where negligent healthcare providers are not held accountable for preventable mistakes and the cost of malpractice is borne by the patient, the patient's family, the patient's health insurer, and, in some cases, the taxpayer. That cost should be borne by the healthcare provider and the liability insurer for the provider. This would assure that the cost of the malpractice is properly assigned to the wrongdoer, identify healthcare providers who may need additional training or a new profession, and provide justice to the patient. Holding the negligent healthcare provider accountable will also improve the quality of healthcare in the community.

How can our justice system correct the problem at hand? Although a definitive solution is beyond the scope of this article, one idea would be to create an arbitration panel whereby patients could consent to bring their claims. The jurisdiction of the panel would be limited to claims below a certain dollar figure. It would consist of judicially appointed three-member arbitration panels with a plaintifff's perspective, a defense perspective, and a citizen's perspective. The panel would select appropriate medical experts to review the case and hear testimony from the parties in an abbreviated procedure. Decisions by the panel would not be subject to appeal. Funding sources for the panel could be derived from fees paid by liability insurers and healthcare insurers (who benefit by recovery of medical bills it paid due to malpractice) as well as by a user fee (filing fee) paid by the plaintiff.

There will be many who criticize the approach, rightly so, and certainly anyone with a better idea of how to fix the problems should speak up. We know that many Minnesotan are routinely denied access to our justice system due to the high cost and risk of pursuing a medical malpractice case, and as officers of the court we should not silently accept this.