Busting the malpractice myths

It’s a common view that malpractice lawsuits are clogging up the American legal system and that many, if not most, patients who sue wind up with multimillion-dollar settlements.

But is this belief supported by the evidence? Apparently not, according to a recently released benchmarking report by Zurich, one of the top insurers of hospitals and health care organizations in North America.

Zurich collected data from 1,600 hospitals for 1997 through 2007. The main findings: There was a slight decline in the frequency of malpractice claims over the decade, and the average amount per claim has leveled off.

Teaching hospitals and children’s hospitals were the most likely to be sued for a large amount; nonprofit hospitals were the least likely. Community hospitals and outpatient facilities were somewhere in the middle. The reason for these differences isn’t entirely clear, although it might be at least partially explained by the fact that teaching hospitals often see patients who are sicker or have more complex or unusual illnesses.

The states with the highest claim severity were New York, Illinois and Pennsylvania.

The report more or less confirms what other studies have found: People do not necessarily go rushing to a lawyer after a bad outcome, and they don’t generally prevail when their grounds for a lawsuit are flimsy.

Pennsylvania, for instance, is considered one of the riskier states when it comes to malpractice litigation. Yet data for 2008 showed the number of lawsuits had decreased substantially, from 2,632 in 2000 to 1,602 eight years later. Only about 10 percent of the cases in 2008 actually went to trial, and the health care provider(s) prevailed 80 percent of the time.

And this study, which appeared in the New England Journal of Medicine in 2006, reached similar conclusions. The researchers collected random closed-claim samples and reviewed them, assigning a six-point scale according to the likelihood that medical error resulted in a bad outcome for the patient. They found that 80 percent of the claims involved significant injury resulting in disability or death. Slightly more than half of the plaintiffs were awarded damages, the average being $485,348. On the other hand, cases that went to trial were more likely to be those of questionable merit.

Although this study has been interpreted by more than a few observers as evidence that it’s mostly frivolous claims that end up in court, the researchers didn’t see it this way. Their take: It sometimes can require going to court for patients, families and their attorney to discover what actually happened that led to a bad outcome.

Of particular note, one in six of the claims the researchers examined involved an error by a clinician, yet the patient and/or family received no compensation. Most national estimates suggest that only about 10 percent of patients who are injured ever seek compensation. Maybe it’s because Americans aren’t as litigious as everyone thinks, or maybe it’s because injured patients aren’t being told the full truth.

Here’s the real clincher from the NEJM study’s authors:

Our findings suggest that moves to curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation. The vast majority of resources go toward resolving and paying claims that involve errors. A higher-value target for reform than discouraging claims that do not belong in the system would be streamlining the processing of claims that do belong.

High-profile, multimillion-dollar cases tend to grab the public’s attention. From there, it’s a short leap to assuming these types of cases are common. But this is anecdotal at best, and the statistics don’t back this up. Maybe the discussion about tort reform would be less volatile if the emphasis was on fact rather than emotion.

Photo: Wikimedia Commons

6 thoughts on “Busting the malpractice myths

  1. While the settlements are reducing in number and the amounts may have leveled off, several items not mentioned in the article are the increases in insurance premiums over the same period. Another item are the many cases which are settled without the courts being involved, just the attornies. The combination of the court cases and the out of court settlements have a direct affect on the increase of insurance premiums which directly affect insurance cost increases involved in healthcare.

  2. Bob K is right in that 97% of all malpractice payments involve settlements, not court judgments, but all payments, including settlements, are reported to the National Practitioner Data Bank. The number of payments is down. You can check it for yourself by downloading and analyzing the National Practitioner Data Bank’s Public Use Data File.

    The real problem with malpractice is that there is too much of it. The way to reduce malpractice costs is to reduce malpractice in the first place. That wouldn’t be too hard to do if the profession would police itself better. Over half of all the malpractice payments in the last 20 years are the result of malpractice by only 2 to 5% of physicians depending on the state.

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