Public Perceptions, Health Care Providers and Litigation

The positivity of patients stands in contrast to the demoralization of physicians themselves. In a 2014 national poll, 39% of physicians reported that they will retire earlier due to the changes in the health care system. They feel overextended, and 29% would not choose medicine again as a career. Sixty percent complain that they are spending less time with patients and more money on technology. Fitzgerald, Beth, “Physician Survey Paints Bleak Future for Profession,” NJBIZ, January 2015. Still, there is a small light for physicians. Forty-four percent report their feelings about the profession are positive, up from 35% in 2012. Supra at 5. And what is most satisfying to physicians? The patient relationships. Supra at 5, page 48. Patients continue to love their physicians, and physicians value the relationship with their patients. When physicians step into the legal system their halos have typically not been tarnished.

When it comes to the health care industry however, the perceptions are quite different. In a Gallup poll from the Fall 2014, the health care industry was rated a minus-9; less than zero. See http://bit.ly/1E1kB82, Sept. 3, 2014. The public wants more government regulation of pharmaceutical and drug companies as well as oversight of health insurance and managed care companies such as Health Management Organizations (HMOs). All of these are at the bottom of the public's trustworthiness list. The Harris Poll, “Americans Less Likely to Say 18 of 19 Industries are Honest and Trustworthy This Year,” harrisinteractive.com, 2013. As the pollsters commented, “The negative image of the healthcare industry could reflect the reaction some of the public has had to the controversial Affordable Care Act.”

Indeed, in a January poll, the cost of health care was once again the most pressing financial concern of Americans. According to Gallup, “Healthcare this year has returned to the top of the list for the first time since early 2010, when the Affordable Care Act, or “Obamacare,” was signed into law. Still, Americans viewed it as an even bigger financial problem in 2007.” See http://bit.ly/1HnUhIR, Jan. 21, 2015. Nearly six in 10 Americans (57%) say they are satisfied with the total cost they pay for health care, on par with other readings over the last five years. See http://bit.ly/1AaU1bb, Dec. 5, 2015. That poll also found that the majority of Americans rated their care as “excellent,” especially those on Medicaid and Medicare, which is consistent with the high approval ratings of their actual providers. Those on government programs are more likely to actually have health insurance. Smith, Jessica et. al., “Health Insurance Coverage in the United States: 2013,” United States Census Bureau, census.gov, September 2014. See also http://bit.ly/1wU0aNd, Jan. 7, 2015.

Still, 35% of Americans struggle to pay their medical bills. Sanger-Katz, Margot, “Signs of a Decline in Financial Distress Connected to Medical Bills,” The New York Times, http://nyti.ms/1KMwPfo, Jan. 15, 2015. Those who are sick are especially worried. Eighty-nine percent of sick Americans see the cost of health care as serious. NPR/Robert Wood Johnson Foundation/Harvard School of Public Health, “Poll: Sick in America,” May 2012.

The Affordable Care Act has received mixed approval ratings from both the public and health care providers. First of all, 75% of people find it difficult and 40% can't understand it. Cass, Connie, “Confused by Issues of the Day? Join the Club,” http://bit.ly/1FArJdW, Sept. 27, 2014. Physicians who do understand it haven't given it good grades ' 46% of them gave the Affordable Care Act a D or F grade. Supra at 5, page 8. The Act has not helped the public's positive perceptions of the healthcare system ' it is essentially the same as it was in 2001, and that is at 36%. See http://bit.ly/1KLVAqf, January 2015.

When it comes to the public's perception of problem-makers in the health care system, the health care industry and litigation are the targets of negativity. Health insurance companies, pharmaceuticals and managed care companies are at the bottom of the trustworthiness list, ranging from 10% down to 6%. Over 70% of those polled thought insurance companies and pharmaceutical companies were “very” or “completely” responsible for rising health care costs. Sixty-two percent thought the main culprit was the cost of medical malpractice insurance. Supra at 3, page 5. And health care leaders' opinions are consistent with that. They believe that health care costs will continue to rise due to fraud, waste and medical malpractice. Sixty-five percent of them believe the burden will fall to workers as employers continue to shift rising expenses to those they employ. Greene, Jay, “Who's to Blame for Rising Health Care Costs,” Crain's Detroit Business, Nov. 17, 2014. While providers do well with the public, the rest of the health care industry is surely not doing well. Indeed, public perception of this sector is at the same level as the legal field, and medical malpractice lawsuits overlap them both. Supra at 9.

When asked about rising health care costs, the public inevitably includes medical malpractice litigation as a factor. In a national poll, 75% of respondents cited lawsuits and legal fees as major causes of high medical insurance rates. The public believes that the risk of lawsuits and the cost of liability insurance results in good doctors leaving medicine, and causes those who stay to order unnecessary tests and procedures for fear of being sued. “Nationwide Clarus Poll Reveals That A Large Majority of U.S. Voters Think Legal System Increases Cost of Health Care,” http://prn.to/18vtduy, May 29, 2012. Whether this is actually true or not, one of the reasons that physicians themselves question their choice of career is the threat of malpractice liability. Supra at 5, page 47. Even those who are sick say medical malpractice lawsuits are a major cause of their rising health care cost. Supra at 16. And it isn't that the public is immune to medical mistakes. In a recent study, 23% of respondents said they had been involved in a situation with themselves or a loved one where a preventable error had occurred, and 35% said medical errors were a serious problem. Blendon, Robert, “The Public's Views on Medical Error in Massachusetts,” Harvard School of Public Health/Betsy Lehman Center for Patient Safety and Medical Error Reduction/Health Policy Commission, September 2014. But that doesn't mean that they will sue. “Research from a number of studies yields estimates that only about one in 25 patients with a negligent or preventable medical claim brought a lawsuit against the health provider.” Vidmar, Neil, Juries and Medical Malpractice Claims: Empirical Facts versus Myths, Clin Orthop Relat Res' 2009 Feb; 467(2): 367-375, at page 367-368.

Those who thought there were too many medical malpractice lawsuits did so regardless of the quality of care they themselves were receiving. “Evidently, when consumers consider the frequency of medical liability lawsuits, their attitudes are relatively unaffected by their feelings about the quality of care they think physicians and hospitals provide. Seemingly, health care costs, but not quality of care, affect their beliefs.” Chandra, Ashish et. al., “Healthcare Consumers' Beliefs about Medical Malpractice Lawsuits,” Hospital Topics: Research on Perspectives on Healthcare, Vol. 87, no. 2, Spring 2009, at page 30. Ninety-one percent thought there were too many medical malpractice lawsuits regardless of the quality of their own care. Most interestingly, 70% of those who had actually filed a medical malpractice lawsuit also thought there were too many such lawsuits.

What does all of this mean when both defendants and plaintiffs step into the legal system? For the few cases that actually proceed to a jury trial, plaintiffs do not fare well. In the most recent Department of Justice (DOJ) survey, “At trial, medical malpractice plaintiffs were less likely to prevail than other tort plaintiffs, but the few medical malpractice plaintiffs who did recover damages tended to receive larger awards than other successful personal injury plaintiffs. The plaintiff win rate for medical malpractice was 23%, less than half the plaintiff win rate for other personal injury cases.” Civil Justice Survey of State Courts, 2005 Medical Malpractice Trials and Verdicts in Large Counties, 2005, NCJ 203098, U.S. Department of Justice, Office of Justice Programs. Between 2009-2013, of the 10% of medical malpractice lawsuits going to verdict in the PIAA Data Sharing Project, the plaintiff prevailed in just 10% of them. Miller, Kwon, 2014 Closed Claim Comparative, Exhibit 4, PIAA, 2275 Research Blvd., Ste. 250, Rockville, MD 20850.

Jury verdicts are reflective of the public's general perception. Vidmar Neil, et. al., American Juries: The Verdict. Amherst, NY: Prometheus Books; 2007; 147-190, 281-302. Contrary to popular belief of providers, juries are not particularly sympathetic to those who sue in medical malpractice cases. And as to malpractice lawsuits in general, the public is more concerned about the perceived effect on the cost of their health care than they are on the quality of it-for themselves or others. The Affordable Care Act has not impacted that opinion. The cost of health care remains the top economic concern for the public-and the public continues to believe that malpractice lawsuits contribute to that cost. Even though the public has negative perceptions of the healthcare industry and malpractice, their trust in providers trumps this, and this trust is borne out in the courtroom.

Linda S. Crawford , a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and consults with witnesses on research-based effectiveness at deposition and trial.

The Gallup poll on the trustworthiness of professionals came out in January, as it always does.Yet again, it reported that health care professionals were the most trusted people in the country. Not so for the health care industry, however. And Americans continue to link the rising cost of health care in part to medical malpractice lawsuits ' even those who have been plaintiffs think there are too many lawsuits. What does all of this mean when it comes to facing juries in the courtroom?

Perceptions of the Profession

As we stated above, health care professionals continue to be held in high esteem by the public. Indeed, nurses rank number one every single year, with 80% of respondents reporting that they trust nurses in the latest poll. Physicians and pharmacists were numbers two and three on the list, with 65% of respondents reporting that they trusted them. (Police officers and clergy rounded out the top five. Sadly, we lawyers are trusted by only 21% of the respondents, but this is above used car salesmen and members of Congress!) See http://bit.ly/1B7uSSM. The trust the public places in physicians collectively reflects the personal, one-on-one interactions patients have with their doctors. In one large survey, 79% of people said they were very satisfied or extremely satisfied with their doctor visits. Only 1% were not. The Physicians Foundation, “Consumer Attitudes toward Family/Primary Care Physicians and the U.S. Healthcare System, 2012. And patients believe their physicians have their best interests at heart. A large consumer study found that, “most [patients] report that their doctor always exercises independent judgment, despite possible pressures 'from hospitals, government and insurance companies'.” Supra at pg. 6. This is interesting, since a poll of physicians found that 69% of them believe their decisions are compromised. The Physicians Foundation, “2014 Survey of America's Physicians,” September 2014.

The positivity of patients stands in contrast to the demoralization of physicians themselves. In a 2014 national poll, 39% of physicians reported that they will retire earlier due to the changes in the health care system. They feel overextended, and 29% would not choose medicine again as a career. Sixty percent complain that they are spending less time with patients and more money on technology. Fitzgerald, Beth, “Physician Survey Paints Bleak Future for Profession,” NJBIZ, January 2015. Still, there is a small light for physicians. Forty-four percent report their feelings about the profession are positive, up from 35% in 2012. Supra at 5. And what is most satisfying to physicians? The patient relationships. Supra at 5, page 48. Patients continue to love their physicians, and physicians value the relationship with their patients. When physicians step into the legal system their halos have typically not been tarnished.

When it comes to the health care industry however, the perceptions are quite different. In a Gallup poll from the Fall 2014, the health care industry was rated a minus-9; less than zero. See http://bit.ly/1E1kB82, Sept. 3, 2014. The public wants more government regulation of pharmaceutical and drug companies as well as oversight of health insurance and managed care companies such as Health Management Organizations (HMOs). All of these are at the bottom of the public's trustworthiness list. The Harris Poll, “Americans Less Likely to Say 18 of 19 Industries are Honest and Trustworthy This Year,” harrisinteractive.com, 2013. As the pollsters commented, “The negative image of the healthcare industry could reflect the reaction some of the public has had to the controversial Affordable Care Act.”

Indeed, in a January poll, the cost of health care was once again the most pressing financial concern of Americans. According to Gallup, “Healthcare this year has returned to the top of the list for the first time since early 2010, when the Affordable Care Act, or “Obamacare,” was signed into law. Still, Americans viewed it as an even bigger financial problem in 2007.” See http://bit.ly/1HnUhIR, Jan. 21, 2015. Nearly six in 10 Americans (57%) say they are satisfied with the total cost they pay for health care, on par with other readings over the last five years. See http://bit.ly/1AaU1bb, Dec. 5, 2015. That poll also found that the majority of Americans rated their care as “excellent,” especially those on Medicaid and Medicare, which is consistent with the high approval ratings of their actual providers. Those on government programs are more likely to actually have health insurance. Smith, Jessica et. al., “Health Insurance Coverage in the United States: 2013,” United States Census Bureau, census.gov, September 2014. See also http://bit.ly/1wU0aNd, Jan. 7, 2015.

Still, 35% of Americans struggle to pay their medical bills. Sanger-Katz, Margot, “Signs of a Decline in Financial Distress Connected to Medical Bills,” The New York Times, http://nyti.ms/1KMwPfo, Jan. 15, 2015. Those who are sick are especially worried. Eighty-nine percent of sick Americans see the cost of health care as serious. NPR/Robert Wood Johnson Foundation/Harvard School of Public Health, “Poll: Sick in America,” May 2012.

The Affordable Care Act has received mixed approval ratings from both the public and health care providers. First of all, 75% of people find it difficult and 40% can't understand it. Cass, Connie, “Confused by Issues of the Day? Join the Club,” http://bit.ly/1FArJdW, Sept. 27, 2014. Physicians who do understand it haven't given it good grades ' 46% of them gave the Affordable Care Act a D or F grade. Supra at 5, page 8. The Act has not helped the public's positive perceptions of the healthcare system ' it is essentially the same as it was in 2001, and that is at 36%. See http://bit.ly/1KLVAqf, January 2015.

When it comes to the public's perception of problem-makers in the health care system, the health care industry and litigation are the targets of negativity. Health insurance companies, pharmaceuticals and managed care companies are at the bottom of the trustworthiness list, ranging from 10% down to 6%. Over 70% of those polled thought insurance companies and pharmaceutical companies were “very” or “completely” responsible for rising health care costs. Sixty-two percent thought the main culprit was the cost of medical malpractice insurance. Supra at 3, page 5. And health care leaders' opinions are consistent with that. They believe that health care costs will continue to rise due to fraud, waste and medical malpractice. Sixty-five percent of them believe the burden will fall to workers as employers continue to shift rising expenses to those they employ. Greene, Jay, “Who's to Blame for Rising Health Care Costs,” Crain's Detroit Business, Nov. 17, 2014. While providers do well with the public, the rest of the health care industry is surely not doing well. Indeed, public perception of this sector is at the same level as the legal field, and medical malpractice lawsuits overlap them both. Supra at 9.

When asked about rising health care costs, the public inevitably includes medical malpractice litigation as a factor. In a national poll, 75% of respondents cited lawsuits and legal fees as major causes of high medical insurance rates. The public believes that the risk of lawsuits and the cost of liability insurance results in good doctors leaving medicine, and causes those who stay to order unnecessary tests and procedures for fear of being sued. “Nationwide Clarus Poll Reveals That A Large Majority of U.S. Voters Think Legal System Increases Cost of Health Care,” http://prn.to/18vtduy, May 29, 2012. Whether this is actually true or not, one of the reasons that physicians themselves question their choice of career is the threat of malpractice liability. Supra at 5, page 47. Even those who are sick say medical malpractice lawsuits are a major cause of their rising health care cost. Supra at 16. And it isn't that the public is immune to medical mistakes. In a recent study, 23% of respondents said they had been involved in a situation with themselves or a loved one where a preventable error had occurred, and 35% said medical errors were a serious problem. Blendon, Robert, “The Public's Views on Medical Error in Massachusetts,” Harvard School of Public Health/Betsy Lehman Center for Patient Safety and Medical Error Reduction/Health Policy Commission, September 2014. But that doesn't mean that they will sue. “Research from a number of studies yields estimates that only about one in 25 patients with a negligent or preventable medical claim brought a lawsuit against the health provider.” Vidmar, Neil, Juries and Medical Malpractice Claims: Empirical Facts versus Myths, Clin Orthop Relat Res' 2009 Feb; 467(2): 367-375, at page 367-368.

Those who thought there were too many medical malpractice lawsuits did so regardless of the quality of care they themselves were receiving. “Evidently, when consumers consider the frequency of medical liability lawsuits, their attitudes are relatively unaffected by their feelings about the quality of care they think physicians and hospitals provide. Seemingly, health care costs, but not quality of care, affect their beliefs.” Chandra, Ashish et. al., “Healthcare Consumers' Beliefs about Medical Malpractice Lawsuits,” Hospital Topics: Research on Perspectives on Healthcare, Vol. 87, no. 2, Spring 2009, at page 30. Ninety-one percent thought there were too many medical malpractice lawsuits regardless of the quality of their own care. Most interestingly, 70% of those who had actually filed a medical malpractice lawsuit also thought there were too many such lawsuits.

What does all of this mean when both defendants and plaintiffs step into the legal system? For the few cases that actually proceed to a jury trial, plaintiffs do not fare well. In the most recent Department of Justice (DOJ) survey, “At trial, medical malpractice plaintiffs were less likely to prevail than other tort plaintiffs, but the few medical malpractice plaintiffs who did recover damages tended to receive larger awards than other successful personal injury plaintiffs. The plaintiff win rate for medical malpractice was 23%, less than half the plaintiff win rate for other personal injury cases.” Civil Justice Survey of State Courts, 2005 Medical Malpractice Trials and Verdicts in Large Counties, 2005, NCJ 203098, U.S. Department of Justice, Office of Justice Programs. Between 2009-2013, of the 10% of medical malpractice lawsuits going to verdict in the PIAA Data Sharing Project, the plaintiff prevailed in just 10% of them. Miller, Kwon, 2014 Closed Claim Comparative, Exhibit 4, PIAA, 2275 Research Blvd., Ste. 250, Rockville, MD 20850.

Jury verdicts are reflective of the public's general perception. Vidmar Neil, et. al., American Juries: The Verdict. Amherst, NY: Prometheus Books; 2007; 147-190, 281-302. Contrary to popular belief of providers, juries are not particularly sympathetic to those who sue in medical malpractice cases. And as to malpractice lawsuits in general, the public is more concerned about the perceived effect on the cost of their health care than they are on the quality of it-for themselves or others. The Affordable Care Act has not impacted that opinion. The cost of health care remains the top economic concern for the public-and the public continues to believe that malpractice lawsuits contribute to that cost. Even though the public has negative perceptions of the healthcare industry and malpractice, their trust in providers trumps this, and this trust is borne out in the courtroom.

Linda S. Crawford , a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and consults with witnesses on research-based effectiveness at deposition and trial.