Day on Torts
The Tennessee Medical Malpractice Claims Report for 2009 (which reports data for 2008) contains lots of information of interest to lawyers who represent Tennesseans in medical malpractice claims. Last week I wrote about the number of claims closed in 2008 and the amount paid on these claims. Today I will drill down a little deeper on one topic – resolution of claims involving death.
About 1960 Tennesseans die each year as a result of medical malpractice in a hospital. (The number that die as a result of malpractice in a doctor’s office or nursing home or dentist’s office or elsewhere has not been estimated to my knowledge.) Yet, in 2008, there were 538 medical malpractice claims resolved in cases where the allegation involved malpractice-related death of the patient in all settings.
The total amount of money paid to resolve the 538 death claims was $60,663,764, or an average of less than $120,000 per claim. I hasten to add that gross payment figure includes claims on which no money was paid. The report does not indicate how many closed death claims resulted in no payment whatsoever. However, the report does indicate that payments were made in only 15% or so of all closed claims in 2008. If that statistic is true in the wrongful death area, it means that payments were made in only about 80 wrongful death cases in 2008 and the average payment was about $750,000 per claim.
Now, I know I am making a whole lot of assumptions here. But as we try to understand this data, we have to make assumptions because (a) the method of reporting does not give us information on key issues and (b) confidential settlements mandated by defendants prevent us from having more accurate data.
A couple of concluding thoughts. First, remember that we are talking about the date of closing claims, not the date of death. Thus, these deaths occurred over a number of years. Yet, it is not unreasonable to assume that there are 450 – 600 wrongful death claims asserted each year. What happened to the hundreds of other wrongful death claims arising from malpractice? They were not filed, either because (1) the survivors were ignorant of the circumstances giving rise to the death, (2) it was not economically feasible to pursue the claim because the medical malpractice insurance industry has gone to extraordinary lengths to make the prosecution of the claims so expensive; (3) the claims were viable but a lawyer contacted by the family did not realize that a claim could be successfully asserted or (4) the survivors did not pursue the claim for religious or other reasons.
Second, there were only about 80 paid wrongful death claims in 2008 (once again, I know I am making some assumptions here – I’m doing the best I can with limited data.) Even if the paid claim number is two or three times that, there are hundreds and hundreds of valid claims every year that are not pursued for one of the reasons specified above.
Third, there were hundreds of wrongful death claims asserted for which no payment was made. This could have occurred because (a) there was no proof of malpractice; (b) there was no proof of causation; (c) the plaintiff was unable to qualify the necessary experts because of Tennessee’s goofy locality rule; (d) the plaintiff’s lawyer lacked the knowledge or money to bring an otherwise valid case to a successful resolution; and (e) the plaintiff’s lawyer had to drop the case because defense tactics made it to expensive to pursue it from an economic standpoint. It is anticipated that the new medical malpractice certificate of good faith statute will address (a) and (b). The statute came into effect on October 1, 2008, so it had no effect whatsoever on these 2008 closed-claim statistics.
NOTE: As I re-read this, I see the need to clear up one matter. A "claim" is not the same as a lawsuit. If there are four defendants in a wrongful death lawsuit, that will almost certainly be reported as four different claims even though there is only one death. Likewise, if multiple defendants settle a defendant case, this would be reported as multiple claims being resolved. For the year ending July 1, 2009 there were only 426 medical malpractice lawsuits filed in the prior twelve months in the entire state and obviously not all of those cases involved the death of the patient. Thus, when the Report indicates that 80 wrongful death claims were resolved in the 2008 calendar year that almost certainly does not mean that the litigation for 80 decedents were resolved but rather claims against 80 defendants (or potential defendants) were resolved. The number of actual decedents would have been less and, indeed, it would not be unlikely that the number of decedents was less than 60 and perhaps less than 40.