• What the “evidence” of “frivolous” medical malpractice lawsuits really says Friday, February 11, 2011

    The fight against “frivolous” medical malpractice suits is back in the news. President Obama said in his State of the Union speech he is open to “medical malpractice reform to rein in frivolous lawsuits.” That brought cheers from Rep. Phil Gingrey (R-Ga.), one of the authors of a bill (H.R. 5) that would limit the amount of damages that could be awarded to victims of malpractice. (It’s a subject Gingrey knows something about, since, as Barry Meier reported in The New York Times, he has faced malpractice charges himself in his previous career as an obstetrician.  A jury found against him once, and in two other cases he paid settlements.)

    Certainly no doctor–presumably including Gingrey–would say victims of “real” malpractice shouldn’t be compensated for their injuries (although they may question whether a jury should have the power to determine the compensation, and they may advocate for limiting the amount of compensation). It’s all those “frivolous” malpractice suits that run up malpractice insurance premiums and consumer health costs.


    What’s interesting is what those who rail against the avalanche of “frivolous” suits claim as their evidence:

    ● “According to a study by the Harvard School of Public Health, 40 percent of medical malpractice suits filed in the U.S. are ‘without merit.’” — Rep. Lamar Smith (R-Tex.), ranking Republican on the House Judiciary Committee, on Politico.com, Oct. 1, 2009

    ● “Though Harvard School of Public Health researchers set out to prove in a 2006 study that medical malpractice litigation really isn’t a problem, their integrity compelled them to publish the pesky fact that about 40 percent of malpractice lawsuits filed each year in America are ‘groundless.’” — Darren McKinney, American Tort Reform Association, in a New York Times “Letter to the Editor,” Sept. 27, 2009

    ● “A recent Harvard study revealed that 40% of malpractice suits are frivolous, leading to 15% of the payouts.” — Dr. Marc Siegel, assistant professor at NYU Langone Medical Center, New York Daily News, Sept. 9, 2009

    In citing this study (“Claims, Errors, and Compensation Payments in Medical Malpractice Litigation“) as evidence, it’s clear those who use it to promote the idea of abundant “frivolous” lawsuits didn’t actually read it. Or, if they did, they chose to ignore that authors’ conclusion that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” At the very least they never saw Harvard’s news release about the survey when it was published, with the headline, “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits.”

    The authors of the study wrote:

    The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. (emphasis added)

    In other words, plaintiffs often need to file a claim just to get the information necessary to determine whether to proceed. And often once that information is revealed plaintiffs realize they don’t have a legitimate claim…and don’t proceed with the lawsuit. Those cases are included in the 40 percent of claims that were determined to be “without merit.”

    But even when a claim is “without merit,” there can still be legitimate suffering by the claimant. According to the Harvard study, “Eighty percent of claims involved injuries that caused significant or major disability (39 percent and 15 percent, respectively) or death (26 percent).” While some of these claims were determined not to involve medical errors and thus could be characterized as “frivolous” under the definition of the word in law (“present no rational argument based upon the evidence or law in support of the claim”), those injuries can hardly be described as “frivolous” the way most people use the word (“of little weight or importance…lacking in seriousness”).

    It’s true some plaintiffs in the Harvard study received awards in cases that were characterized as “without merit,” but the study found an even greater number of plaintiffs whose injuries did result from medical error and did not receive compensation. Or, in the words of the study:

    Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy — nonpayment of claims associated with errors.

    If the malpractice system were “fixed,” with all plaintiffs who deserved compensation receiving it and no other plaintiffs winning awards, the amount awarded to medical negligence victims would actually be greater than it is today.  Again, quoting from the study:

    One in six claims involved errors and received no payment. (emphasis added) The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

    What, there’s a “vast number of negligent injuries that never surface as claims”? But isn’t this is a litigious society where people look for any excuse to sue? Not quite; the authors of the Harvard study write “research has established that the great majority of patients who sustain a medical injury as a result of negligence do not sue.”

    “Frivolous” lawsuits should be among the least of the worries of those looking to improve the medical malpractice system. As William Sage, now the vice provost for health affairs at the University of Texas at Austin School of Law, said when the Harvard study was published, “the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.”

    Of course, it’s hard to see what “frivolous” lawsuits have to do with limiting damages awarded to the victims of the most serious malpractice by juries that clearly found their case anything but frivolous. And it’s also hard to see why the existence of “frivolous” suits should restrict access to justice. As retired federal judge H. Lee Sarokin writes, “Under what other circumstances would we punish persons who have legitimate claims because others have filed frivolous ones? Do we reduce Medicare payments to honest doctors because others have made fraudulent claims?”

    –J.G. Preston

    Some of the material used here has appeared in an earlier post.

  • Consumer Reports debunks claims of frivolous lawsuit epidemic
  • Where’s the evidence that doctors flock to states with caps on medical malpractice damage awards?
  • Why the stories you’ve read about doctors performing “unnecessary tests” aren’t entirely accurate
  • The best way to reduce malpractice suits? Reduce malpractice
  • Study: The poor and elderly are “silent victims” of the medical malpractice system

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