NEJM Study on Med Mal Claims

Here is an interesting study of med mal claims in this week’s New England Journal of Medicine (sub. req’d).

The abstract states (in part):

Results For 3 percent of the claims, there were no verifiable medical injuries, and 37 percent did not involve errors. Most of the claims that were not associated with errors (370 of 515 [72 percent]) or injuries (31 of 37 [84 percent]) did not result in compensation; most that involved injuries due to error did (653 of 889 [73 percent]). Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy — nonpayment of claims associated with errors. When claims not involving errors were compensated, payments were significantly lower on average than were payments for claims involving errors ($313,205 vs. $521,560, P=0.004). Overall, claims not involving errors accounted for 13 to 16 percent of the system's total monetary costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including those involving lawyers, experts, and courts). Claims involving errors accounted for 78 percent of total administrative costs.

Conclusions Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.

emphasis added.

Here is a graphical representation of the study’s results.  While the authors note that claims involving error account for 78 percent of total administrative costs, that implies that 22 percent goes to no-error cases.  Using 2004 data (from the NAIC annual statement state page on defense costs) that would amount to almost $900 million of costs of claims without injuries.  What would be interesting is to see if those no-error cases are randomly distributed among the states or if there were particular states with a higher incidence of no-error claims.

(click on graphic for better view)

Comments

[Bruce Moomaw]

What about the fact that the same study shows that the number of valid claims unfairly denied awards is substantially BIGGER than the number of unjustly awarded claims (a ratio of 236 to 151 in this study)? Studdert himself says flatly that this study proves that the "landslide of frivolous lawsuits" argument we hear from the Right is utter nonsense:

http://www.hsph.harvard.edu/press/releases/press05102006.html

http://www.sciencedaily.com/releases/2006/05/060511084336.htm

http://www.sciencenews.org/articles/20060513/fob1.asp

I also notice that the AMA's official comment on this study -- in a breathtaking display of downright ridiculous dishonesty -- mentions the first fact while totally failing to mention the second! Naughty boys:

http://www.ama-assn.org/ama/pub/category/16265.html

[Bruce Moomaw]

Actually, this study meshes with common sense. It never did make any sense that the lawyers representing patients had some Svengali-like power to hypnotize large numbers of jurors into viciously persecuting innocent doctors, while the lawyers on the other side mysteriously lacked this same power.

This does leave us with the separate question of whether -- when juries DO award malpractice settlements at all -- they award payments that are much too high. But this seems unlikely, if juries aren't providing awards at all to enough patients. Sure enough, the study also found that the average award was $482,428 ($521,560 to those regarded by the reviewing M.D.s as justified) -- and 26% of the claims involved death while another 54% involved "significant or major disability". Excessive?

[David Nieporent]

Bruce, for the sake of symmetry, it "seems" right to compare the number of "wrong" verdicts on each side -- 236 vs. 151 -- and conclude that the former is actually a bigger problem than the latter. But you're defining the problem incorrectly. The problem isn't merely bad verdicts. All 515 "wrong" lawsuits are a problem; the 151 that resulted in "wrong" verdicts are just the worst of the worst. (Or, rather, the correct numbers are 188 and 552, since there were 37 completely meritless ones in the study.) A correct defense verdict is still costly and burdensome, not free.

What the study actually shows (to the extent we accept the researchers' assessments of the claims, of course) is that 38% of all the claims made did not involve negligence on the part of the doctor, and sometimes did not even involve injuries. In other words, for any case, the odds of it being justified are only somewhat better than the flip of a coin. That sounds, if not like a landslide, like at least a very serious problem.

And your second comment acknowledges that amounts of awards are an important issue as well, although you gloss over that by assuming that injuries and damages are the same thing. (The fact that someone suffered a "major disability" and that the doctor made an error does not mean that the error was the cause of the "major disability.")

Finally, as to your sarcastic comment, it does "make sense," if you focus on the real issue rather than strawmen. Obviously if the claimed issue were "hypnosis," then it wouldn't -- but that's not the issue. The power defense attorneys lack isn't the power to hypnotize, but the power to produce a sympathetic victim.

[Bruce Moomaw]

I've only now caught your comment, and it still seems to me (and to the researchers) to totally avoid their central conclusion: that errors in malpractice trials more often redound to the benefit of the defendant than that of the plaintiff. If you can propose some modification of legal procedure that would reduce BOTH types of error, fine; but meanwhile let's at least not fall for the GOP's current line of nonsense that the proper solution to the problem is just to reduce the maximum amount of money that plaintiffs -- right or wrong -- can EVER receive.