Recently I wrote about the New Mexico Medical Malpractice Act and the N.M. Medical Review Commission generally. As a Panelist for the Commission and a mediator/arbitrator/ALJ, I believe medical malpractice cases should have a high potential for mediation or other alternative dispute resolution (ADR) process. I also strongly suspect that ADR could be used more effectively and efficiently than litigation to resolve many of these disputes, which Acting Commission Director Michael Rueckhaus describes as "some of the most complex and time-consuming cases that are filed in court."
To appreciate the complexity and contention of these cases, it is illuminating to examine the annual statistics reported in the 2010 Annual Report (June 28, 2010) concerning what happens to medical malpractice claims after they have been heard and voted on by the Commission.
To appreciate the complexity and contention of these cases, it is illuminating to examine the annual statistics reported in the 2010 Annual Report (June 28, 2010) concerning what happens to medical malpractice claims after they have been heard and voted on by the Commission.
From March 1, 1976 to February 28, 2009, 3,723 Panel hearings were conducted involving 5,943 providers. As to those 5,943 providers, the Panel found that 77% (4,577) were not negligent, and 23% (1,366) were negligent. Moreover, of the 1,366 found to be negligent, the Panel "determined that negligence caused harm to the patient in claims against 931 providers," or approximately 16%.
As Director Rueckhaus observes in the Report, the most common question he receives--it was my question to him as well, which prompted him to provide me the Report--is: "what happens after a Panel screens an application?" Recall from the previous blog, that a Panel hearing is a prerequisite to filing a malpractice suite in District Court. However, under the Statute, the Panel determination is inadmissible and patients may go forward with their suit irrespective of the Panel determination.
The bulk of the Report is devoted to answer that question as best it can with the available data. The Commission itself does not have the budget, man power or other resources to track claims after the Panel. However, the American Physician;s Assurance Corporation (APA)--which is the largest N.M. medical practice insurers of medical and osteopathic doctors and medical entities, and represents 74.61 of all providers whose cases were screened by the Commission--has graciously shared its statistical data with the Commission over the years.
According to APA data, which due its size and volume, is likely to be quite representative of other providers, lawsuits were filed against 34.87% (1,546) of APA insureds, and the rest either settled or dropped before suit was filed. Although this percentage (assuming it is representative) is substantially higher than the percentage of providers for whom negligence and especially negligence and harm was found (23% and 16% respectively), it nonetheless demonstrates the dramatic screening effects of the Panel in the first instance.
Of the 1,546 APA-covered lawsuits,63% were dismissed for reasons other than summary judgement (such as settlement), and 9.25% were dismissed on summary judgment. 240 or 15.52% went to verdict. (Rueckhaus notes that it cannot be determined from this data how many suits involved multiple APA insureds, or how many providers were defendants in the same suit.)
In cases that went to trial, patients have historically prevailed 17.08% of the time, which is substantially larger that the difference between the percentage of plaintiffs prevailing at the panel (23%) and the percentage who filed suit (34.87%). It appears then that patients fare may better before a jury (or judge) than a 6-person panel of legal and medical experts--perhaps that is not terribly surprising.
Of the 1,291 providers that prevailed at the Panel:
- 3.44% (845) claim was dropped or settled;
- 9.76% (126) obtained a summary judgment;
- 12.63% (163) received a defense verdict;
- 2.01% (26) received a patient verdict; and
- 10.15% (131) were pending at the time of the Report.
13.76% of the189 claims by patients who lost at the Panel but went on to trial, prevailed at trial.
Of the 255 patients that prevailed at Panel:
- 50.59% (129) claim was dropped or settled;
- 6.66% (17) lost by summary judgment;
- 14.12% (36) defense verdict;
- 5.88% (15) patient verdict; and
- 22.75% (58) were pending at the time of the Report.
29.41% of the 51 claims by patient who prevailed at the Panel and went on to trial, prevailed at trial.
Based on these numbers, Director Rueckhaus acknowledges the old saw: good cases settle and the bad ones go tho trial. However, he also notes that statistics can be misleading and skewed, and notes several examples of statistical anomaly over the years.
If you are interested in mediation services for a medical malpractice matter, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
