Experts At Odds Over Med Mal Tort Study

WASHINGTON–The medical malpractice tort system is getting it right most of the time, but critics argue that there are still too many groundless lawsuits being filed.

Nearly three-quarters of medical malpractice injury claims received compensation, and a similar number of groundless claims resulted in no payments being made, according to research by the Harvard School of Public Health and Brigham and Women's Hospital.

“Overall, the malpractice system appears to be getting it right about three quarters of the time,” said David Studdert, associate professor of law and public health at HSPH. “That's far from a perfect record, but it's not bad, especially considering that questions of error and negligence can be complex.”

Supporters of medical liability tort reforms, most notably a cap on non-economic “pain and suffering” damages, took another view, arguing that nearly four out of 10 groundless cases is far too many.

Dr. Cecil Wilson, a board member of the American Medical Association, said the results are “proof positive that meritless medical liability lawsuits are clogging the courts.”

Although the authors of the study said that such caps are not necessary, Dr. Wilson said the AMA would continue to press for “proven” reforms.

“The American Medical Association supports proven reforms, including a cap on non-economic damages, working in some states to stabilize medical liability premiums and preserve patients' access to care,” he said.

After examining 1,452 closed malpractice claims across four categories–surgery, obstetrics, medication, and missed or delayed diagnosis–researchers found that 72 percent of cases that did not involve medical error did not receive compensation. Among the cases that did involve error, 73 percent were compensated for damages.

When claims without injury were paid, they typically received less than meritorious claims, the researchers found, with legitimate claims getting an average of $521,560 and non-injury claims receiving $313,205.

“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 Mr. Studdert, who also served as lead author of the study.

“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.”

Supporters of medical liability tort reform noted another finding in the study, however, that no evidence could be found that an injury was due to medical or treatment error in nearly 40 percent of cases filed involving an injury.

According to the study, more than 90 percent of the cases filed for malpractice involved an injury, and of those, nearly two-thirds, 63 percent, were attributed to some error. In 37 percent of cases, the researchers found, there was no evidence of any errors.

The costs of meritless cases, Dr. Wilson said, are borne by patients through decreased access to care. The study, he noted, also points out the high financial costs of defending any malpractice case.

The costs of litigating cases, including defense costs and contingency fees paid to plaintiffs' lawyers, averaged $52,521 per claim, according to the study, and the authors found that it takes an average of five years from injury to resolution of a claim.

“Deciding negligence is a very expensive process,” Mr. Studdert said.

The study, published in the New England Journal of Medicine, comes as medical liability tort reform was again brought to the Senate floor. Two bills–one that would have capped non-economic damages for all medical malpractice lawsuits and another relating specifically to obstetricians–failed to win cloture, which would have eliminated the possibility of a filibuster, and were dropped.