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Saturday, May 13 2006 @ 12:59 PM EDT Contributed by: James Views: 665
New England Journal of Medicine
May 11,2006
Claims, Errors, and Compensation in Medical Malpractice Litigation
In this national study of 1452 closed claims, physician reviewers found no evidence of medical errors in 37 percent. Most claims, however, did not result in payment to the plaintiffs. Claims not associated with errors accounted for only 13 to 16 percent of the total costs. See original article in the New England Journal of Medicine.
Note: This Article has been reviewed many times. A number or those reviews are presented below.
Commentary:
Hacrvard's own Press Release on this artlcle
Study Casts Doubt on Claims That the Medical Malpractice System Is
Plagued By Frivolous Lawsuits
System Does a Good Job of Rejecting Claims Without Merit, but
Administrative Costs Are Exorbitant
For immediate release: Wednesday, May 10, 2006
--------------------------------------------------------
Boston, MA - The debate over medical malpractice litigation, which raged
during the last presidential campaign, continues as a hot-button
political and health care issue in the U.S. The Senate is expected to
vote soon on legislation to impose a federal cap on noneconomic damages
in malpractice suits, following on similar bills that passed the House
of Representatives but stalled in the Senate last year. One popular
justification for tort reform is the claim that "frivolous" medical
malpractice lawsuits-those lacking evidence of substandard care,
treatment-related injury, or both-enrich plaintiffs' attorneys and drive
up health care costs. A new study by researchers from the Harvard School
of Public Health (HSPH) and Brigham and Women's Hospital challenges the
view that frivolous litigation is rampant and expensive.
The researchers analyzed past malpractice claims to judge the volume of
meritless lawsuits and determine their outcomes. Their findings suggest
that portraits of a malpractice system riddled with frivolous lawsuits
are overblown. Although nearly one third of claims lacked clear-cut
evidence of medical error, most of these suits did not receive
compensation. In fact, the number of meritorious claims that did not get
paid was actually larger than the group of meritless claims that were
paid. The findings appear in the May 11, 2006 issue of The New England
Journal of Medicine.
"Some critics have suggested that the malpractice system is inundated
with groundless lawsuits, and that whether a plaintiff recovers money is
like a random 'lottery,' virtually unrelated to whether the claim has
merit," said lead author David Studdert, associate professor of law and
public health at HSPH. "These findings cast doubt on that view by
showing that most malpractice claims involve medical error and serious
injury, and that claims with merit are far more likely to be paid than
claims without merit."
The authors reviewed 1,452 closed claims from five malpractice insurance
companies across the country. They focused on four clinical categories:
surgery, obstetrics, medication and missed or delayed diagnosis, areas
that collectively account for about 80% of all malpractice claims filed
in the U.S. Specialist physicians in each of these clinical areas
reviewed the claims and the associated medical records to determine
whether the plaintiff had sustained an injury from care. If an injury
had occurred, the physicians judged how likely it was to have been due
to medical error.
The reviewers found that almost all of the claims involved a
treatment-related injury. More than 90% involved a physical injury,
which was generally severe (80% resulted in significant or major
disability and 26% resulted in death). The reviewers judged that 63% of
the injuries were due to error. The remaining 37% lacked evidence of
error, although some were close calls.
Most claims (72%) that did not involve error did not receive
compensation. When they did, the payments were lower, on average, than
payments for claims that did involve error ($313,205 vs. $521,560).
Among claims that involved error, 73% received compensation. "Overall,
the malpractice system appears to be getting it right about three
quarters of the time," said Studdert. "That's far from a perfect record,
but it's not bad, especially considering that questions of error and
negligence can be complex." The 27% of cases with outcomes that didn't
match their merit included claims that went unpaid even though the
injury was caused by an error (16%); claims that were paid but did not
involve error (10%); and claims that were paid but did not appear to
involve a treatment-related injury (0.4%).
However, the study did not paint a uniformly positive picture of the
current malpractice system. The costs of litigating claims, including
defense costs and contingency fees paid to plaintiffs' lawyers, averaged
$52,521 per claim. Overall, these administrative costs amounted to 54%
of the compensation paid to plaintiffs. "Deciding negligence is a very
expensive process," said Studdert. The authors also found that it took
an average of five years from injury to resolution of the claim-a long
time for plaintiffs to wait for compensation and for defendants to
endure the uncertainty that litigation entails.
Finally, the authors found that the claims that did not involve errors
absorbed a relatively small piece of the costs of compensation.
Eliminating those claims would decrease the system's compensation and
administrative costs by no more than 13% to 16%. "Many of the current
tort reform initiatives, such as caps on noneconomic damages, are
motivated by a perception that 'jackpot' awards in frivolous suits are
draining the system," explained Michelle Mello, an associate professor
of health policy and law at HSPH and a co-author of the study. "But
nearly 80% of the administrative costs of the malpractice system are
tied to resolving claims that have merit. Finding ways to streamline the
lengthy and costly processing of meritorious claims should be in the
bullseye of reform efforts."
In a separate study released May 10 by the Robert Wood Johnson
Foundation's Synthesis Project, Mello examined the effects of the recent
increases in malpractice insurance premiums on the delivery of health
care services and the impacts of state tort reforms. Reviewing existing
studies, the report concluded that the deteriorating liability
environment has had only a modest effect on the supply of physician
services. "The best evidence shows, at most, a small overall decrease in
the number of physicians practicing in high-liability states compared to
lower-risk states, though some rural areas have been more affected,"
Mello said. Aside from caps on noneconomic damages, most tort reforms
adopted by states in response to malpractice crises have not been
effective in boosting physician supply or reducing insurance or
litigation costs. Damages caps "help constrain growth in litigation
costs and insurance premiums over time, but disproportionately burden
the most severely injured patients." The study is available at http://www.rwjf.org/publications/synthesis/reports_and_briefs/issue10.ht
ml
###
The work reported in the New England Journal of Medicine was supported
by grants from the Agency for Healthcare Research and Quality and the
Harvard Risk Management Foundation. The related study was supported by
the Policy Synthesis Project of the Robert Wood Johnson Foundation.
For further information contact:
Todd Datz (617)432-3952 tdatz@hsph.harvard.edu
------------------------------------------------------------
Commentary by Lilliam Gaskin, Committee Liaison
The author
of the article did not seem to understand that at the time medical
malpractice cases are filed, the plaintiffs do not know whether an
injury was or was not caused by negligence. It takes the litigation
process to discover hospital records etc. and figure that out. Tom
Baker, Professor of Law and Director of the Insurance Law Center at the
University of Connecticut, said in his recently released a book, The
Medical Malpractice Myth, that studies of hospital patients found that
"only a small fraction of eligible patients filed a claim," (p. 69) and
patients who bring weak claims usually do so only to find out whether
the hospital has been negligent. Patients who learn that their care was
appropriate usually drop their claims; and insurance companies very
seldom pay weak claims even if patients continue to pursue them. (pp. 77
and 84).
------------------------------------------------------------
In the last week, two highly respected medical journals - the New England Journal of Medicine and Health Affairs - have published three breakthrough academic articles based on studies that counter deep-rooted myths about medical malpractice litigation in America. These myths have been wrongly perpetuated by the American Medical Association.
We believe these studies are significant enough to redefine the debate about medical malpractice litigation and thought it was important to alert you to them.
Links to information about these articles are as follows:
Please note that while the AMA has apparently been attempting to spin these groundbreaking studies with inaccurate press releases that, in at least one case, led to an erroneous AP story, we believe these studies speak for themselves.
For copies of the full articles, or if you have any additional questions, please let us know.
Joanne Doroshow
Executive Director
Center for Justice & Democracy
----------------------------------------------------------
BRIEFLY; Frivolous malpractice suits rare Los Angeles Times May 15, 2006 Monday
Copyright 2006 Los Angeles Times
All Rights Reserved
Los Angeles Times
People who file lawsuits against doctors accusing them of medical
mistakes rarely do so frivolously, and those who file trivial claims
generally receive no payout, researchers have found.
"Portraits of a malpractice system that is stricken with frivolous
litigation are overblown," said David Studdert, who led a team of
researchers at the Harvard School of Public Health in examining 1,452
randomly selected U.S. lawsuits.
The study, published in the May 11 issue of the New England Journal of
Medicine, also found that one in six of those who are injured by medical
errors receive no compensation at all.
Studdert's finding supports other studies that have shown that the great
majority of people injured by medical negligence never sue, and seems to
disagree with assertions that the court system is rife with frivolous
lawsuits.
Patients who do win their trials received an average of $799,365 in
damages, nearly twice as much as the $462,099 average out-of-court
settlement, the study found.
LOAD-DATE: May 15, 2006
(Copyright (c) 2006, Dow Jones & Company, Inc.)
The Wall Street Journal
May 15, 2006 Monday
SECTION: LETTERS TO THE EDITOR; Pg. A15
LENGTH: 256 words
HEADLINE: `Science Courts' Needed For Malpractice Litigation
BODY:
Newt Gingrich and John T. Gill are on target: Tort reform, highlighted
by caps on non-economic damages, is a necessary precursor to the
resurrection of medical practice ("Cross Country: Prodigal State," May
4). But that remedy is not sufficient: In other states, especially those
with long-standing obeisance to the plaintiff's bar (often under the
guise of "protecting patients' rights"), more changes will be needed to
stem the medical exodus. I believe creation of a "science court," or
medical tribunals, modeled after other specialty courts (e.g., Workers
Compensation, Vaccine Injury), would be a great step on the road toward
restoring rationality to the process of rendering just compensation to
patients injured because of medical negligence.
Peer-reviewed studies have shown little relationship between negligence
and damage recoveries. Anyone who has experienced the travesty of
litigation involving complex medical issues can attest to its lack of
fairness for all involved. We need to impanel professional jurists with
expertise in medicine and law to mediate such cases and make fair,
equitable decisions as to causation and appropriate remedies. The
present, sorry state of medical malpractice litigation should not be
allowed to continue. Replacing lay juries with impartial, expert medical
tribunals would lead to benefits for doctors and patients -- the only
losers will be lawyers who profit off the current system.
Gilbert Ross, M.D.
Executive and Medical Director
American Council on Science and Health
New York
NOTES:
PUBLISHER: Dow Jones & Company, Inc.
------------------------------------------------------------
Washington Times
LETTERS TO THE EDITOR
May 18, 2006
Malpractice lawsuits
New research published in the May 11 edition of the New England Journal of Medicine establishes that almost every medical malpractice suit filed in the United States has a meritorious basis and rejects claims that the civil justice system is inundated with frivolous lawsuits.
