Myth and Reality: The Threat of Medical Malpractice Claims by Low Income Women

Mussman Mary G. Zawistowich Lu Weisman Carol S. Malitz Faye E. Morelock Laura , “Medical Malpractice Claims Filed by Medicaid and Non-Medicaid Recipients in Maryland,” 265 JAMA 2992 (June 12, 1991).

Perkins Jan Stoll Kathleen , “Medical Malpractice: A Crisis for Poor Woman,” Clearinghouse Review 1277 (Feb. 1987).

Supra note 1 at 2992. (“The cost of malpractice insurance is thought to deter physicians from participating because Medicaid payment is insufficient to compensate for rising premiums…”).

Hilfiker David , “Are Poor Patients More Likely to Sue for Malpractice?” 262 JAMA 1391–1392 (September 8, 1989) and Perkins supra note 2 at 1278–79.

Emphasis added. § 51-1-29.1 of Georgia Code provides:

(a) …unless it is established that injuries or death were caused by gross negligence or willful or wanton misconduct:

(1) No health care provider … who voluntarily and without the expectation or receipt of compensation provides professional services, within the scope of such health care provider's licensure, for and at the request of a hospital, public school, nonprofit organization, or an agency of the state or one of its political subdivisions or provides such professional services to a person at the request of such organization, which organization does not expect or receive compensation with respect to such services from the recipient of such services; or

(2) No licensed hospital, public school, or nonprofit organization, which requests, sponsors, or participates in the providing of the services under the circumstances provided in paragraph (1) of this subsection shall be liable for damages or injuries alleged to have been sustained by the person nor for damages for the injury or death of the person when the injuries or death are alleged to have occurred by reason of an act or omission in the rendering of such services.

Sue also § 8.01–225 of the Code of Virginia which provides in part:

Any person who, in the absence of gross negligence, renders emergency obstetrical care or assistance to a female in active labor who has not previously been cared for in connection with the pregnancy by such person or by another professionally associated with such person and whose medical records are not reasonably available to such person shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care or assistance. The immunity herein granted shall apply only to the emergency medical care provided.

A number of more general immunity statutes have passed nationwide to immunize “volunteers” who provide medical services, regardless of the setting.

See Rothenberg Karen H. , “Who Cares? The Evolution of the Legal Duty to Provide Emergency Care,” 26 Houston L. Rev. 21 (1989).

Supra note 1 at 1278. (“Pregnant women on Medicaid or with no insurance are included in most practitioners' definitions of “high risk,” because these women more often receive no prenatal care and exhibit other indications of pregnancy complications such as inadequate diet and high stress.”) and Supra note 1 at 1991.

Brennan Troyen Hebert Liesi E. Laird Nan M. Lawthers Ann Thorpe Kenneth E. Leape Lucian L. Russell Localio A. Lipsitz Stuart R. Newhouse Joseph P. Weiler Paul C. Hiatt Howard H. , “Hospital Characteristics Associated with Adverse Events and Substandard Care,” 265 JAMA 3265 (June 16, 1991).

CDC, “Update: Acquired Immunodeficiency Syndrome—United States, 1981–1990,” 40(2) MMWR 358 (June 7, 1991). (“A history of IV-drug abuse was reported by 2329 (47.6%) women with AIDS. Heterosexual contact with a man infected with HIV or at high risk for HIV infection accounted for 1657 (33.9%) cases among women; 64.1% of these male sexual partners were IV-drug users.”)

Levine Carole , “Women and HIV/AIDS Research: The Barriers to Equity,” 14 Evaluation Review 447, 449 (1990).

McNulty Molly , “Combating Pregnancy Discrimination in Access to Substance Abuse Treatment for Low-Income Women,” Clearinghouse Review 21, 22 (May 1989). (“Most drug treatment programs categorically do not admit pregnant addicts, because clinics lack obstetrical expertise, because a pregnant addict is considered “high-risk” and drains away a disproportionate share of treatment resources, or because they fear obstetrical malpractice suits. Likewise, prenatal care centers often turn away pregnant women who are addicts, because they lack drug treatment capacity, or because they wish to avoid treating high-risk patients.”)

See e.g., Randall Teri , “Intensive Prenatal Care May Deliver Healthy Babies to Pregnant Drug Abusers,” 265 JAMA 2773–2774 (June 5, 1991).

A survey of New York physicians in 1989 found that “on average, physicians estimate that 19.5 out of one hundred of their colleagues will be sued in a given year, approximately three times the actual rate, with significant differences by specialty, location, and suit history …. High risk specialties (obstetrics, orthopedics, and neurosurgery) had a perceived risk of being sued that was almost three times that of low-risk specialties (internal medicine and associated subspecialties) and 76 percent higher than the overall average perceived risk of 19.5 suits per one hundred physicians.” “Physicians' Perceptions of the Risk of Being Sued,” Lawthers A.G. Localio A.R. Laird N.M. , Journal of Health Politics, Policy and Law 17:3, 1992.

Localio A.R. Lawthers A.G. Brennan T.A. Laird N.M. Herbert L.E. Peterson L.M. Newhouse J.P. Weiler P.C. Hiatt H.H. , “Relation Between Malpractice Claims and Adverse Events Due to Negligence: Results of the Harvard Medical Practice Study III,” 325(4) N. Engl. J. Med. 245–51, 250 (July 25, 1991).

This result corroborates earlier studies and reports, such as one study conducted in California which concluded that “for each medical malpractice claim, 10 injuries were caused by negligent care,” (Id. at 245) and a report which found that “[n]inety percent of the potentially successful causes of action due to medical negligence never result in lawsuits.” Supra note 2, at 1280.

Id. at 249.

Empirical evidence suggests providers can reduce actual malpractice claims by all socioeconomic groups by improving communications with patients. Hickson Gerald Clayton Ellen Wright Githens Penney Sloan Frank , “Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries,” 267 JAMA 1359–1363 (March 11, 1992). A recent study, which surveyed 127 Floridian families who had filed claims for birth-related injuries, examined the reasons why families filed lawsuits. The reasons cited are illuminating: While 24% filed to obtain funds for long-term care, 20% filed when they realized the child had “no future”; 19% wanted to deter future incidents of malpractice or obtain revenge on the physician; 33% filed because someone, often another doctor, advised them to file, (or alternatively, the families interpreted subsequent treating physician comments as recognition of an injury or advice to sue); 24% filed because their physician was not honest about the circumstances of the injury; and 20% filed because it was the only way the families could determine what caused the injury. Families believed physicians failed to recognize fetal distress (53% of sample), manage fetal distress properly (57%), or perform a caesarean section (33%) or that physicians were unavailable when needed (29%).

Supra note 2, at 1280.

Supra note 5 at 1391–1391. (“The perception that poor patients sue more for medical malpractice is a damaging myth.”)

Id; See also supra note 2, at 1180.

Supra note 9.

In contrast, medical malpractice defense work is generally conducted on a hourly charge basis, with the attorney recovering regardless of the outcome.

Of course, this conclusion may change in the context, for example, of women and the AIDS epidemic. When HIV begins to affect increasing numbers of white, middle class women, the risk calculus may be altered. This group of women may be more likely to recognize the occurrence of an injury, better able to afford to sue, more likely to have family members able to press the suit, and more likely to recover a larger judgment.