I was recently listening to the radio in my car featuring a couple politicians and political commentators going back and forth about how ALL the problems with the health care system are due to medical malpractice lawsuits. It about made me drive off the road because so much of the information was BLATANTLY FALSE. Over and over again, academic studies trying to analyze the REAL PROBLEMS with the healthcare system conclude that the $ involved with malpractice litigation are just a teeny, tiny fraction of the “healthcare costs” and that there is NO EVIDENCE that there is an increase in medical malpractice lawsuits.

As just one example, the New York Center for Justice and Democracy, in January, 2007, debunked several medical malpractice myths, (See: “THE TRUTH ABOUT MEDICAL MALPRACTICE LITIGATION“) such as:

CONTRARY TO POPULAR MYTH, FEW INJURED PATIENTS FILE LAWSUITS.

FAR FROM BEING “BROKEN,” THE CURRENT MEDICAL MALPRACTICE SYSTEM WORKS WELL

THE VAST MAJORITY OF TRUE MEDICAL MALPRACTICE CASES SETTLE; “FRIVOLOUS” CASES DO NOT SETTLE.

THE NUMBER OF MEDICAL MALPRACTICE PAYMENTS IS DECLINING.

Now, here are the FACTS that support these conclusions:

• In 2004, medical malpractice cases accounted for an average of only four percent of tort cases;
  
• Between 44,000 and 98,000 Americans die each year (and 300,000 are injured) due to medical errors in hospitals alone. Yet eight times as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation;
  
• The Harvard School of Public Health recently found that the current system works: legitimate claims are being paid, non-legitimate claims are generally not being paid, and “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”;
  
• In the Harvard closed claims study, only fifteen percent of claims were decided by trial verdict. Other research shows that 90 percent of cases are settled without jury trial, with some estimates indicating that the figure is as high as 97 percent;
  
• As Duke Law professor Neil Vidmar, who has extensively studied medical malpractice litigation, recently testified in the U.S. Senate, “Research on why insurers actually settle cases indicates that the driving force in most instances is whether the insurance company and their lawyers conclude, on the basis of their own internal review, that the medical provider was negligent.….An earlier study by Rosenblatt and Hurst examined 54 obstetric malpractice claims for negligence. For cases in which settlement payments were made there was general consensus among insurance company staff, medical experts and defense attorneys that some lapse in the standard of care had occurred. No payments were made in the cases in which these various reviewers decided there was no lapse in the standard of care.”;
  
• According to Public Citizen’s analysis of National Practitioner Data Bank (NPDB) data, between 1991 and 2005, the total number of malpractice payments made on behalf of doctors declined 15.4 percent (with judgments and settlements).;
  
• Public Citizen’s analysis also found that between 1991 and 2005, the number of malpractice payments per 100,000 Americans dropped more than ten percent;
  
• According to Public Citizen’s analysis of National Practitioner Data Bank (NPDB) data, “the annual average payment for a medical malpractice verdict has not exceeded $1 million in real dollars since the beginning of the NPDB. The average payment for a medical malpractice verdict in 1991 was $284,896. In 2005, the average was $461,524. Adjusting for inflation, however, shows that the average is actually declining. The 2005 average adjusted for inflation is only $260,890 — a decline of 8 percent since 1991.”;
  
• Public Citizen also found that the total number of malpractice payments made on behalf of doctors, including judgments and settlements, declined 15.4 percent from 2001-2005 (from 16,588 in 2001 to 14,033 in 2005) and “the number of payments per 100,000 people in the U.S. also fell since 2001 – from 5.82 to 4.73 – a decline of 18.6 percent. Since 1991, the number of payments per 100,000 people declined more than 10 percent.”;
  
• Frivolous claims are also a myth. According to Duke University Law Professor Neil Vidmar, “the magnitude of jury awards in medical malpractice tort cases positively correlated with the severity of the plaintiffs’ injuries, except that injuries resulting in death tended to result in awards substantially lower than injuries resulting in severe permanent injury, such as quadriplegia. I and two colleagues conducted a study of malpractice verdicts in New York, Florida, and California. We also found that jury awards of prevailing plaintiffs in malpractice cases were correlated with the severity of the injury.”;
  
• Contrary to popularly held notions, “According to the Harvard School of Public Health, patients “rarely won damages at trial, prevailing in only 21 percent of verdicts as compared with 61 percent of claims resolved out of court.”;
  
• The New England Journal of Medicine confirmed in a breakthrough article by George J. Annas, J.D., M.P.H., that litigation against hospitals improves the quality of care for patients;
  
• According to a recent study by Dr. Thomas Gallagher, a University of Washington internal-medicine physician and co-author of two studies published in the Archives of Internal Medicine, “Comparisons of how Canadian and U.S. doctors disclose mistakes point to a ‘culture of medicine,’ not lawyers, for their behavior.”;
  
• The Congressional Budget Office found that “Malpractice costs account for less than 2 percent of [health care] spending,” and that all the provisions of the federal medical malpractice bill, including a $250,000 cap on non-economic damages, “would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small.“

Well, I hope this helps set some of the FACTS straight.

Thanks for reading,

Jim Reed
jreed@zifflaw.com