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Cleveland.com – Facts contradict physician’s view on medical malpractice

By Meghan Connolly and Dennis Mulvihill, January 20, 2014, Cleveland.com

Dr. Michael Kirsch’s column (“Litigation fever causing headaches for able physicians,” published in The Plain Dealer Jan. 12) is the epitome of a double standard. While he says that we, nondoctors, should take more responsibility for our own mistakes, nowhere does he suggest the medical community should take responsibility for medical mistakes that cause serious injury and death to patients. Nowhere does he acknowledge that preventable medical errors are the leading cause of accidental death nationwide, and third leading cause of death from all causes – killing as many as 400,000 patients annually, according a study in the September 2013 Journal of Patient Safety. Or that one-third of hospital patients fall victim to medical negligence each year, as reported in the April 2011 issue of Health Affairs. Or that doctors are currently pressing the Ohio General Assembly to pass House Bill 276, a law that would allow doctors to lie to a civil jury about having previously admitted to the patient at the hospital that they made a mistake. Are these examples of the medical profession taking responsibility for its errors?

Dr. Kirch’s most misleading claim is that Ohio courts are full of frivolous, baseless medical malpractice cases. He left out that in order to bring medical malpractice lawsuit in Ohio, the patient must first get permission from a physician. Under Ohio law, one cannot file a lawsuit against a doctor without first securing an affidavit, executed under oath, by a qualified physician, stating that each doctor named in the lawsuit was negligent and caused the patient’s injury. Without this affidavit, the lawsuit cannot be filed.

The precipitous drop in lawsuits also disproves the idea that medical malpractice litigation has run amok in Ohio. The Ohio Supreme Court’s 2012 Statistical Report shows a staggering decrease in medical negligence claims compared to ten years ago. The number of professional malpractice cases filed (against attorneys, doctors and other professionals) dropped from 2,683 in 2003 to 1,242 in 2012 (down 54 percent). There are no other statistics to suggest medical malpractice litigation has run amok.

Medical malpractice lawsuits are rare in part due to Ohio laws favoring physicians. In addition to the affidavit requirement mentioned above, Ohio’s one-year statute of limitations keeps many cases out of court. No state in the union has a shorter period of time for patients to bring medical negligence claims. In many instances of medical malpractice, one year is not enough time for injured patients or their families to retain counsel, evaluate the case, and obtain permission to sue from a physician. After the one year expires, the courthouse doors are shut forever to that injured patient.

Dr. Kirsch also complains about the number of doctors named in some malpractice cases. But because in most cases Ohio law prevents a physician from being added to a case later on, all potentially negligent physicians must be named up front. Interestingly, lawyers who represent injured patients have asked the General Assembly to change the law that currently requires every doctor to be named initially in a lawsuit, and, ironically, it is the powerful medical lobby in Columbus that has resisted this common-sense change.

Dr. Kirsch may not know that the vast majority of medical malpractice cases are turned down by law firms, usually because of the cost of the litigation or the laws that favor doctors. A 2013 Emory Law School study found that attorneys turn away 95 percent of patients who suffered harm during medical treatment. The costs to bring a medical malpractice case typically exceed $100,000. Even if the case for liability is strong, if the potential damages do not justify the expensive process of litigating a medical malpractice case, it doesn’t make sense for the client or the law firm to pursue the case. This reality cannot be reconciled with Dr. Kirsch’s views.

It should also be noted that contrary to Dr. Kirsch’s anecdotal assessment, if someone falls on naturally accumulated ice or snow, Ohio law precludes that person from filing a lawsuit.

Dr. Kirsch’s column is extremely misleading about the current legal climate and must be corrected. Readers deserve an accurate account of the status of the law and how it presently works to keep most patients injured by medical mistakes out of court.

Meghan Connolly and Dennis Mulvihill are practicing attorneys with the Cleveland law firm of Lowe Eklund Wakefield & Mulvihill Co., LPA, and members of the Ohio Association for Justice, a statewide association of attorneys who dedicate their practices to helping injury victims. Mulvihill is the former president of the Ohio Association for Justice.