Washington State Med Mal Closed Claims Study

Interesting facts from a recent closed claims study of malpractice claims in Washington State (1994-2004).

 

Number of claims	10,073	100%
Claims with Payment	2,737	27.2%
Claims with Defense Costs, but No Payment	6,135	60.9%
Claims with No Defense Costs & No Payment	3,248	32.2%

                       

The average defense cost for claims without any further payment was approximately $21,700.  This amount increased by an annual rate of 6.4 percent.

 

Claims with no paid indemnity represented 66.6 percent of claims with defense costs, and accounted for 47.5 percent of defense costs over the ten-year period.

 

One of the apparent problems of med mal is the level of damage awards (hence the pressure to institute damage caps). However, a significant cost to the system comes from the claims with no payments to a victim—almost 50 percent of the defense costs go to claims with no payment.  This is where the benefit of removing or reducing incentives to sue will pay-off. From this data, only 27 out of 100 cases resulted in a payment to the victim.  Washington has enacted a number of reforms (shown below) which may have an effect on the litigation rate.  A question that needs to be addressed is are these effective in reducing the incidence of lawsuits?  We can not really address the question because we can not compare tort reform efforts across states.  We don’t often have comparable data and this leads to these case study type of analysis which can not be used to say much more than “It costs a lot!”.

• Barring Admission of a Defendant’s Apology: SB 6429 (2002).  Bars the admission of a defendant's apology to a plaintiff as evidence in support of a plaintiff's case.  The law previously discouraged discourse and impeded the resolution of disputes between parties by allowing apologies to be used against defendants in litigation.   
• Frivolous Lawsuit  Sanction: SB 5023 (1991).  Allows a court to impose sanctions, including the awarding of attorneys’ fees and costs, against a party to a lawsuit that advances the lawsuit frivolously, even if the case is settled by the parties and does not proceed to trial.  Allows a trial court to enter an order requiring the non-prevailing party to pay attorneys’ fees and costs whether a case is ended through a voluntary or involuntary order of dismissal.
• Joint and Several Liability Reform: SB 4630 (1986): Wash. Rev. Code Ann. § 4.22.070(1)(b).  Bars application of the rule of joint and several liability in the recovery of all damages, except in cases in which defendants acted in concert or the plaintiff is found to be fault free, or in cases involving hazardous or solid waste disposal sites, business torts and manufacturing of generic products.
• Medical Liability Reform: Contingent Fee Reform: Wash. Rev. Code Ann. § 7.70.070.  Requires a court to determine the reasonableness of contingent fees in medical liability cases.

source: American Tort Reform Association