Med-mal filings fall in Massachusetts

By Julia Reischel
The number of medical-malpractice lawsuits filed in Massachusetts has been declining over the past several years, suggesting that attorneys who represent patients are exercising greater caution in the cases they accept, according to lawyers and insurers.
Statistics released by the state Administrative Office of the Trial Court show that 485 med-mal cases were filed in 2008, compared to 724 in 2003.
The state’s biggest medical-malpractice insurer says that the decrease in filings is part of a nationwide trend that appears to have no single, obvious cause.
“There’s really no one specific reason you can point to,” said Michael R. Kubik, vice president of marketing at ProMutual Group, which insures health care pro-viders.
Still, insurers, doctors and lawyers believe that two factors have played a role in reducing the number of med-mal cases filed in the state: patient safety improvements and the rising cost of litigation.
“There has been a lot of attention and focus on [making] it safer to practice medicine,” said Bruce S. Auerbach, immediate past president of the Massachusetts Medical Society. “We believe that there’s a direct correlation between those activities and the reduction in suits that have been filed.”
Auerbach added that MMS hears complaints from plaintiffs’ lawyers about “the cost, both in actual dollars as well as in time that they must expend to develop a malpractice case.” He speculated that the high cost of med-mal litigation is prompting attorneys to decline weaker cases that are “on the cusp.”
Kubik said ProMutual, too, has observed that plaintiffs’ lawyers in recent years have been “much more selective in terms of the types of case they’re bringing to bear against insurers and doctors.”
One of those lawyers is Robert M. Higgins, who practices at the Boston med-mal firm of Lubin & Meyer.
“I think it really does come down to the fact that [medical-malpractice cases] are very expensive and very high-risk to bring, and people just can’t afford to do it,” said Higgins.
Pamela S. Gilman, who defends health care providers as part of her practice at Taylor, Duane, Barton & Gilman in Boston, said the trend makes sense.
“The decrease in case filings is not surprising, given the current emphasis on improving patient communication and risk-management efforts,” she said. “I also suspect that the decrease in filings is due to a hesitancy on behalf of smaller firms and solo practitioners to make the large investment in pursuing these types of cases.”
The result is that a few established, well-financed med-mal law firms are dominating the practice area more than ever before.
Charles P. Reidy of Boston, who defends doctors, said he is seeing fewer “fringe players” in the med-mal litigation field.
“It’s very exceptional that you wind up seeing a law firm that doesn’t regularly do it,” said Reidy, who practices at Martin, Magnuson, McCarthy & Kenney.
As for the cases themselves, Reidy said it seems as if “more thought goes into them now. I don’t see as many of the ‘why-in-the-world-did-they-bring-this-case’ cases.”

Questions or comments should be directed to the writer at: julia.reischel@lawyersweekly.com