By Michael J. Winkelman

Acceptable Malpractice

Imagine having a conversation with someone and them saying, “heart disease is the number one cause of death in the United States, but I do not think we need to do anything about heart disease.” Or substitute cancer, the number two cause of death in the United States. Have you ever heard anyone say, “cancer is what it is, we should not do anything to research cures.”

Of course not. Both would be intellectually absurd notions to advance. Everyone, most notably the medical community and Big Pharma, work tirelessly to improve healthcare to address heart disease and cancer. As well they should.

And it is not just the medical community who works to support heart disease and cancer. Think of the billions of dollars raised every year through charity events for these causes. The V Foundation alone has raised over $400 million for cancer research. I suspect nearly everyone reading this message has either attended, or given money, to a charity event for cancer or heart disease or both.

Yet when it comes to the third leading cause of death in the United States, society, and most importantly legislators, have an entirely different reaction. There are no charity events to slow the third leading cause of death in the United States. Big Pharma and the medical community are not working tirelessly to find a solution to the third leading cause of death in the United States. To the contrary, they are working tirelessly and spending hundreds of millions of dollars a year to perpetuate the third leading cause of death in the United States.

That is because the third leading cause of death in the United States is medical malpractice.

George Tolley wrote an article in the last edition of this publication, citing the medical studies which demonstrate medical malpractice kills approximately 400,000 people per year in this country. To give some context to that number, the CDC estimated COVID-19 was associated with 250,000 deaths in the United States in 2022. And we shut the country down for COVID-19.

Why has medical malpractice become acceptable in this country? While the answer is not simple enough to condense into a sound bite, our collective experience helps provide guidance. The primary reason is branding. Corporations, the AMA, the insurance lobby, and certain segments of the population have effectively branded the controversy as doctors vs. trial lawyers. This is exceptional branding as we all know doctors win that contest every time.

The insurance industry pours hundreds of millions of dollars into this topic annually and has used the notion of an insurance crisis[1] to scare legislators into tort reform legislation. They have perpetuated this fallacy by suggesting if tort reform, including caps, were not in place, the industry would collapse and citizens would be unable to obtain healthcare, even though the facts demonstrate that states without caps have the same level of healthcare as states with caps[2].

The media propagates the false notion that runaway verdicts are pervasive, and fraudulent claims are the norm, rather than the exception. Corporations pour millions of dollars into political elections and advertising campaigns to keep medical malpractice safe and affordable.

And lost in all this pseudo-intellectual conversation are injured citizens. People harmed by medical malpractice. There are no charity events for them. No one hosts fundraisers for them. Their rights are trampled and their lives destroyed, and no one seems to care. No one, other than us.

The Sun recently ran an article documenting the continued rise of medical errors in Maryland. According to a study by the Maryland Department of Health, medical errors rose for the fourth straight year. There were 957 adverse events reported last year, including 808 Level 1 events, which are medical errors resulting in death or serious disability. And these are only the reported cases, as the statistics are based on self-reporting by the medical industry.

Yet, medical malpractice case filings in Maryland have remained largely static for years.

Health Claims filings average between 600-700 per year, and a significant number of those (between 15-20%) are filed by prisoners and pro-se persons, which do not advance beyond the preliminary stages. So, if malpractice rates are up, why are malpractice claims not increasing?

This is due to a second level of what I term, “acceptable malpractice” in Maryland.

Maryland has passed repeated, and significant, tort reform laws in my practice lifetime. Caps make many cases economically unviable. Pre-trial requirements and specific expert criteria drive up the costs of pursuing cases, creating further barriers. And court created doctrines, like Daubert, can add between $50,000 to $100,000 in additional expense to a case, resulting in many viable cases not being pursued.

We, as an industry of trial lawyers in Maryland, undertake representation in 1 of every 37.5 cases we review. The vast majority of those cases - approximately 20 of the 37.5 - are cases where someone is injured, but they are not hurt badly enough to justify the significant expense associated with pursing litigation. These create a second category of acceptable malpractice cases - cases where there was likely malpractice, but we cannot pursue the malpractice. While some would say no malpractice is acceptable, I would respond by noting malpractice which is unable to be pursued is, by definition, acceptable.

I do not know if medical malpractice law will ever change in Maryland to help injured people, but I do know our job as trial attorneys is to always fight for those people. And one of the ways we can do that is to educate everyone, this is not doctors versus lawyers, this is injured people versus corporate interests. And injured people should win that fight every time. Should, being the operative word.

Biography

Michael J. Winkelman of McCarthy, Winkelman & Mester, LLP practices civil litigation in state and federal courts throughout Maryland and select other jurisdictions, having tried over one hundred cases to verdict before judges and juries. He has extensive appellate experience having argued cases in front of the United States Court of Appeals for the Fourth Circuit, the Maryland Court of Appeals and the Maryland Court of Special Appeals.

[1] Maryland appellate cases which have discussed this topic specifically reference the “alleged” insurance crisis. “Alleged” has been used intentionally, as the judges appreciate the insurance crisis was not proven. Stated in a way which would satisfy our current high court – the alleged insurance crisis would fail a Daubert analysis on nearly every factor.

[2] Medical malpractice accounts for less than one half of one percent of total healthcare costs in the United States.

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