You want to say; "It could also be that 90% of the cases that go to court are lost because there are too many opportunists who file flimsy cases." After having said; "People are very good at convincing themselves".

The example (note the singular) that was presented does not rise to any level of error on the doctors' part. The patient feels no pain, does not see the incision area. To file a lawsuit against the doctors has no merit. Waking up in a room you have already seen when you expect to wake up in a recovery room does not give the patient the right to take large sums of money from the doctor. By your logic I should have sued the obstetrician that cared for the birth of my daughter because of the ring she wore while examining my wife dilation!

Evidence requirements in cases of this nature only requires a preponderance of evidence. This relatively easy to meet.
Also do not forget that the 90% of cases that fail in court only 4% of cases filed are successful. Does not mean they actually had merit, although I am sure some do. Level of merit aside, level of plaintive success aside the total number of claims all has a cost attached. If the incentive of a extremely large payday is controlled the flimsy, meritless cases will begin to die off. This has a direct effect on costs from reduction in monies going to non-medical effort. And a future effect in the reduction of multiple testing, repetitive testing, testing just in case. All of which has an effect on costs.
And no cost is not all I am thinking about. Yet as a nation we all are concerned about the cost of medical treatment.

Seems as though a large part of your arguments are based in a series of what ifs. That is serial assumptions. You are willing to entertain that opportunists are working the system yet assert that it is minimal.
But the most egregious statement is; "its also incorrect to say that because there is some opportunism there are no legitimate cases". Such a claim is not supported by any statements made nor by logic. No one has ever claimed that legitimate cases of malpractice occur, and admitting that opportunistic cases exist does not deny legitimate ones.

Quote Originally Posted by SadisticNature View Post
I think this falls into the realm of opinion. I certainly feel its a hassle to get doctors to run tests they ought to rather than the other way around.

The doctor isn't responsible for what other doctors choose to do. The consequences of actions are not justified by "oh someone else would have done it anyways, but worse".

As for your opinion that the data reflects most claims are without merit and have the appearance of an attempt to engineer a lottery win, I certainly feel this is not the case from the actual examples you gave. Waking up cut open on a table is certainly a valid complaint and is a situation that can do serious psychological harm.

The numbers can be interpreted in many ways. It could be that 90% of the cases that go to court are being lost because the standard of proof is incredibly high to patient disclaimers, and that proving negligence can be difficult. It could also be that 90% of the cases that go to court are lost because there are too many opportunists who file flimsy cases. This doesn't say most of the cases are flimsy though, maybe the medical insurance companies are smart enough to settle the good cases and only push on the bad ones.

It is incorrect to say there is no opportunism in this area, but its also incorrect to say that because there is some opportunism there are no legitimate cases.