A physician by the name of Dr. Richard Viscarello walked into the delivery room of the Maternal Fetal Care clinic in Stamford, CT on Februrary 2, 2003 to perform a routine procedure, according to a 2011 article written by Matthew Sturdvant in the Hartford Courant Blogs. His patient, Cathy D’Attilo, was nine months pregnant and due to deliver her baby in moments. As the contractions hastened, Dr. Viscarello determined that a cesarean section was the most appropriate course of delivery. Before performing the procedure, however, he delayed to follow contemporary protocols on the delivery of newborns. His delay cost him his practice, his career, and profession. The infant suffered a temporary blockage of oxygen and subsequently developed cerebral palsy as a result of Dr. Viscarello’s hesitation. Dr. Viscarello was found guilty of negligent malpractice and was ordered to pay the D’Attilos $58.6 million in damages, according to Sturdvant. In an instant, Dr. Viscarello was bankrupt and without a career.
The jury’s decision in the case of Viscarello v. D’Attilo is significant in three main ways: (1) the amount of money the jury awarded for compensation is to date the highest sum paid for a medical malpractice suit in the country; (2) the jury’s decision tangibly represents the burdensome consequences of medical negligence; and (3) the jury’s decision represents, in the minds of many concerned individuals, the culmination of a long trend toward increasing amounts of damages awarded to plaintiffs in medical malpractice cases.
Over the past decade, the average amount of damages awarded per trial has increased significantly. Statistics from a 2003 study by the National Practitioner Data Bank (NPDB) demonstrate that the average damage amount awarded by a jury in a medical negligence case increased from $154,000 in 1991 to $291,200 in 2003, an increase of 88.2%. The NPDB also notes that on an aggregated level, the total amount of damages paid by American physicians increased from $2.2 billion to $4.45 billion over the same time period. Data such as these indicate that there has been a steady, perpetual increase in the amount of monetary relief awarded to plaintiffs in medical malpractice lawsuits in recent years.
Ironically, although the quantity of malpractice awards has increased, the number of malpractice lawsuits has decreased during this time period. Data from the National Association of Insurance Commissioners published in 2001 indicate that from 1995 to 2000, the total volume of new malpractice claims declined by approximately 4%. Furthermore the association’s publication showed that in 1995 there were 90,212 novel suits initiated, but by the year 2000 only 86,480 claims were filed. This reduction in the number of malpractice lawsuits is an entirely recent phenomenon, however. A 2004 article by Kenneth Thorpe in the journal Health Affairs reports that between 1956 and 1990, the number of lawsuits rose from 1.5 claims per every 100 physicians to 15 claims per every 100 physicians.
Increases in the amount restitution awarded in medical tort claims have altered the economic incentives of medical specialization. Medical specialists that frequently perform procedures are at a higher risk of litigation. According to the article “Malpractice Risk According to Physician Specialty,” written by Anupam Jena and colleagues in a 2011 issue of the New England Journal of Medicine, surgical specialties accounted for the top medical specialties in terms of the percentage of practitioners facing malpractice claims. As a general statistic, the article reports that 7.4% of all physicians experienced a malpractice suit from 1991 to 2005. There was a large degree of variation by specialty, however. The NEJM article further demonstrated that surgeons faced the highest rates of negligence claims at 19.1% for neurosurgeons, 18.9% for thoracic-cardiovascular surgeons, and 15.3% for general surgeons. On the other end of the spectrum, only 5.2% of family medicine physicians, 3.1% of pediatricians, and 2.6% of psychiatrists faced claims of negligence. The article further states that by the age of 65, 75% of physicians in “low-risk” specialties had faced a complaint of medical malpractice, whereas 99% of physicians in “high risk” specialties were reported to have been sued by that point in their career.
In response, a number of states have taken steps to alleviate the rise in damages awarded to plaintiffs in malpractice suits, in the hopes of reversing this trend. In 2003 the Texas legislature passed a set of laws, codified in Chapter 74 of the Texas Civil Practice and Remedies Code, via bill H.R. 5. The law capped non-economic damages to $250,000 for claims against individual physicians and $500,000 for claims against medical institutions. This enactment has had an encouraging effect upon the number of physicians licensed in Texas since 2003. The Center for Economic Freedom, a subsidiary of the Texas Public Policy Foundation (TPPF), reports that 24,583 new physicians have been licensed in Texas since 2003. Additionally, the law has increased the proportion of “high risk” specialists within the state. The study by TPPF states that the number of obstetricians practicing in rural Texas grew by 27% since 2003, and the number of orthopedic surgeons increased by 15% during that time frame. Individual states have launched the first initiatives to curb the drastic increase in damages granted in medical malpractice lawsuits.
In sum the total number of lawsuits relating to medical malpractice has decreased in recent decades, but the average amount of monetary restitution associated with individual cases has increased. Practitioners in procedure heavy specialties are more susceptible to malpractice litigation, but some states have taken steps to alleviate this onerous burden. Nevertheless, according to the evidence, Dr. Viscarello is not the only physician to face a complaint of medical negligence, and, if historical trends are any indication, he certainly will not be the last.