By JIM HALL
After Thelma Scoon died of heart problems at Mary Washington Hospital in 2001, her husband filed suit.
Casimir Scoon sued two of her doctors, a nurse and the hospital, alleging that they had not properly cared for his wife.
The case finally reached a Fredericksburg Circuit Court jury last month. The jury heard four days of testimony before rejecting Scoon's claim. They found no evidence of malpractice.
The Scoon case illustrates one of the realities of medical malpractice lawsuits in Virginia: Most plaintiffs receive no compensation for alleged injuries.
In addition, few malpractice cases actually go to a jury, and when they do, the chances of payment are slim. Juries find for the doctor or hospital five times out of six.
New mandatory reporting from the state's 38 private malpractice insurance companies provides these data. The reports also offer a new way of looking at Virginia's medical malpractice system.
The figures cover only three years, and describe only one state's experience, but they reveal no evidence of a system out of control. Instead, the reports tell of a consistent, conservative malpractice system, where both the number of claims and the amount paid have been constant.
An analysis of the new reports by The Free Lance-Star also shows:
For every patient who received a payment because of medical malpractice, three other claimants received no money.
Mega-awards, or those of $1 million or more, were rare. Virginia currently caps malpractice damages at $1.8 million.
When payments were made, they usually resulted from negotiated settlements. Few claims went to juries, and when they did, juries usually rejected them.
"We call it the most Draconian medical malpractice liability environment in the country," said Jack Harris, executive director of the Virginia Trial Lawyers Association.
The trial lawyers lobbied the Virginia General Assembly this year to require the state's medical malpractice insurance companies to report their claims histories.
The new law says that private insurance companies must file an annual record of all closed malpractice claims. The first report, due Sept. 1, was for the years 2002, 2003 and 2004. Virginia is now one of a handful of states that require closed-claims reports.
The companies forwarded their closed-claims data to the State Corporation Commission. The commission staff spent about a month compiling the data before making it available to the public earlier this month.
Eric Lowe, the principal insurance analyst with the commission's Bureau of Insurance, has studied the data and will report on his findings tomorrow before a joint legislative subcommittee in Richmond.
The insurance companies listed 4,034 closed claims for 2002 through 2004. These claims were stripped of information that might identify individual patients or health-care providers. But they did include details such as the medical specialty of the doctor named, the nature of the allegation, the severity of the alleged injury, the amount of any jury award or negotiated settlement, and the cost to the company of defending against the claim.
The data were not adjusted for inflation, population growth or the increase in Virginia physicians. And some insurance companies were exempt from the reporting requirement.
Still, the SCC staff believes that it received reports on almost all claims closed in Virginia during the reporting period.
The reports show a stability in Virginia's claims that mirrors the experience of other states. For example, Virginia insurance companies closed 1,347 patient claims for alleged injury last year. The number was down slightly from 2003 and up slightly from 2002.
"Claims frequency has been stable nationally for 15 years," said Tom Cox, vice president of PhillipsCox Insurance of Richmond.
Virginia plaintiffs received $68.2 million for malpractice claims last year. Again, the payment total was down slightly from the payment totals for 2003 and 2002.
More than three-fourths of plaintiffs who alleged injury had their claims closed with no compensation. The percentage was unchanged during the three-year reporting period.
A study of closed malpractice claims, published this month by the Washington state insurance commissioner, found that 73 percent of claims there were closed with no payment. And a March study by two University of Texas professors found that 81 percent of claims closed in Texas involved no payment.
As the Texas study noted, "A physician's risk of facing a payout is much smaller than the risk of facing a claim."
The Texas study noted that the large percentage of zero-payment claims may be because plaintiffs often sue more than one doctor, then eliminate defendants as the case progresses.
"There are a lot of cases filed that should not be filed," Cox, the insurance agent, said.
But Harris of the trial lawyers group said the numbers show how difficult it is for plaintiffs to receive compensation for medical malpractice.
Patients who believe they have been harmed by a negligent doctor or hospital must first persuade lawyers to take their cases. Since lawyers work on contingency, or for a percentage of any award, they take only the strongest cases, Harris said.
Many lawyers interview at least 30 prospective clients before agreeing to take a case, Harris said. They reject weaker cases or those involving lesser damages, he said.
"The costs involved in going forward with these cases are so prohibitive that all cases that are accepted by specialists are really strong cases, where liability is relatively clear, the standard of care has been abrogated, and the damages are significant," Harris said.
The claims reports also show that Virginia's medical malpractice cap appears to be having the desired effect of limiting payments to plaintiffs.
The number of people who received a settlement or verdict of $1 million or more was constant during the reporting period. Twelve people received million-dollar awards last year. They represented about 4 percent of all plaintiffs who received payments.
Malpractice caps make the market more predictable and help keep insurance premiums lower, said Rita Nowak, assistant vice president for commercial lines for the Property Casualty Insurers Association of America, based in Chicago.
"Caps really do help. There's no question about it," Nowak said.
Some of these large payments went to the survivors of people who died. Each year about 70 malpractice claims were paid for patient deaths. Another 60 claims were paid each year to people who suffered permanent injury or brain damage or will require lifelong care.
When survivors received a settlement or verdict for a loved one's death, the payments averaged $307,000.
Payments to patients usually resulted from negotiated settlement--77 percent of all paid claims. Nineteen percent resulted from arbitration, and 4 percent were jury awards.
Juries rejected patient claims far more often than they accepted them: 178 claims rejected versus 36 awards for the three-year period.
"Juries are very skeptical of a claim that a physician was negligent. They take a lot of convincing," said Harris of the trial lawyers association.
When juries did make an award, they tended to offer more money than the payments made from negotiated settlements or arbitration. Jury awards averaged $433,000 during the reporting period versus $194,000 for settlements.
Locally, insurance companies or juries paid 19 claims against Fredericksburg-area doctors during the reporting period. The claims are identified by their ZIP codes.
The largest, a 2002 settlement of $775,000, went against a group of Fredericksburg doctors whose patient alleged a "major permanent injury."
Another case, involving a patient who died, resulted in a 2003 arbitration award of $550,000 against a Spotsylvania County family practitioner.
And a third case, also involving a death, closed in 2003 with a $529,000 settlement against a Fredericksburg group practice.
A Fredericksburg case featuring a jury verdict of $1.8 million from earlier this month was not included in the study period.
The stability of claims payments in Virginia sheds new light on the recent increases in malpractice insurance premiums.
Virginia doctors saw their malpractice premiums jump dramatically in recent years, or found it hard to get coverage at all. This led to white-coat protests and reduced access for patients, including those in the Northern Neck, where obstetricians gave up their practices.
A typical family-practice doctor in the Richmond area saw his or her malpractice premium go from about $3,000 a year in 1997 to $9,000 a year in 2005, Cox said.
Rates for an obstetrician/gynecologist went from about $20,000 a year to $50,000 a year, he said.
Cox said these increases were fueled by claims losses from prior years.
"Insurance is where you use the past to predict the future," Cox said.
But Harris of the trial lawyers association said rising premiums are caused by changes in the overall economy and returns on insurance company investments.
"We feel we've never seen any evidence to prove" that claims and rates are connected, Harris said.
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