"Obstetricians May Stop Handling Medicaid Cases" read a headline in The Washington Post.
"Few Cape Doctors Accept Medicaid: Poor Having Trouble Finding Care" read a headline in the Boston Globe. This story described the problem in Massachusetts that has led to thousands of low-income Cape Cod residents not having access to obstetric care.
Both stories explain that, for pregnant poor women, a genuine health crisis exists in our country, created by the combination of low Medicaid reimbursement rates (in Maryland, Medicaid pays a doctor $263 for a regular delivery, less than half the going fee even in rural areas) and rising malpractice insurance premiums.
Adding to this crisis is a widespread assumption (myth?) in the medical community that the poor patient is more likely to sue her doctor than the patient with financial resources. This belief translates into physician reluctance or total refusal to serve poor patients.
In spite of repeated assertions by numerous health professionals that the poor sue more, I have been unable to locate any evidence or statistics that support or refute that claim.
It would be very expensive and difficult to develop reliable data on the propensity of poor people to bring medical malpractice lawsuits compared with other economic classes. First, it would be necessary to determine what proportion of poor people are injured as a result of medical negligence. If poor people suffer more than others at the hands of doctors, then a higher rate of filing claims does not indicate a propensity to sue. There are studies that indicate that the quality of health care that the poor receive is inferior.
Only a small fraction of the general population injured by medical negligence receives or even seeks compensation. A 1973 study prepared for the federal Commission on Medical Malpractice estimated that 7.5 percent of all patients discharged from a hospital suffered injuries, and almost 30 percent of those were due to demonstrable negligence. But only 1.7 percent of these patients filed malpractice claims. Patricia Danzon, of Duke University's Center for Health Policy, estimated that, at most, one in 10 of the patients injured in hospitals files a claim and one in 25 received compensation through the tort system.
Research has shown that the poor are even less likely to perceive that any type of wrong has occurred, to assert their rights, and to obtain legal counsel than the general population. The 1977 final report of a national survey on the legal needs of the public, undertaken by the American Bar Association and the American Bar Foundation, found that minorities, the less educated and those having lower incomes have more reservations about seeking legal assistance. Indeed, there are a number of good reasons to believe that poor people seldom sue for medical malpractice.
A second reason why many poor people do not sue for medical malpractice is that the poor person may never see the money awarded. Medicaid recipients must turn over to the Medicaid agency their right to collect the money awarded by the court for medical care up to the total amount paid by Medicaid for all medical services given to the individual . States have traditionally had similar policies for other state medical assistance programs.
A third disincentive to poor people is the long delays in the settlement of litigation. Malpractice litigation can drag on for many years and psychologically can be a very ugly and personally demeaning experience. Poor people are the least able to afford the cost in time and personal energy to contest their medical treatment. They are also unable to pay for corrective medical care needed as a result of their injury during this delay, and this makes the process even more painful and stressful.
In the field of obstetrics, the problem of long delays between when an injury occurs and payment of compensation was documented by a 1985 American College of Obstetrics and Gynecology survey. There was a delay of one to three years between injury and claim in 33 percent of the cases brought; 9 percent had a delay of more than three years. It then took two to five years to reach a settlement in 37 percent of the cases, and an outcome in a contested case took two to five years in 44 percent of these cases; 11 percent of the contested cases were not resolved in less than five years. This means that many obstetric malpractice injuries remain uncompensated for five to 13 years, if not even longer.
When compensation is finally received, it may be a lump-sum payment which can disqualify the recipient from the Aid to Families with Dependent Children and other assistance programs. "Lucky" successful poor litigants can lose their Medicaid coverage for other illnesses, preventive medical care, and their families' medical expenses.
Another obvious reason why poor people seldom bring malpractice suits is often overlooked by both health professionals and lawyers but may be the first reason a poor person would point to: before a poor person could bring a malpractice suit, he or she must have been able to secure medical care. There is no legal relief for the person who cannot afford medical treatment.