The debate over so-called “frivolous” medical malpractice litigation is a heated one. Proponents on both sides of the issue are quick to offer their commentary and examples of how our civil justice system is spiraling out of control, on the one hand, or serving the interests of justice on the other. But, it isn’t very often that you come across a comprehensive and methodical approach to really analyzing this problem. That’s why a study published in the New England Journal of Medicine a few years ago is so interesting: because it actually offers data to examine what has become, over the last few years, a hotly contested issue.
While other research has attempted to document the number of patients who actually bring a medical malpractice suit, this study attempts to answer a very different—and much more pointed—question: of the patients who do bring a lawsuit, how many of them are actually frivolous? The researchers sought the participation of 5 malpractice insurance companies spread throughout the United States and examined 1,452 different malpractice claims filed at these different companies. The claims dealt with a range of alleged medical injuries in the areas of obstetrics, surgery, missed or delayed diagnosis, and medication—the areas that account for approximately 80% of all medical malpractice claims in the U.S.
After rigorous review of each individual claim by a team of physicians, fellows and final-year residents, the researchers conducted a statistical analysis of the claims reviewed. Here’s a glance at what that statistical analysis revealed:
- Only a small fraction of the claims lacked documented injuries
- Approximately 1/3 of the claims did not actually involve medical error; but only 1 in 4 of these claims actually resulted in a payment on the claim.
- Claims without evidence of injury or effort accounted for only 13% of total litigation costs
- Analysis of the claims not involving error did not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits; rather, the findings underscore how difficult it often is for plaintiffs and attorneys to discern what actually happened before a claim has been filed. That is—the process of filing a claim and litigation brings to light whether an error actually occurred or not.
Ultimately, the researchers came to two general conclusions based on their exhaustive review of the claims:
First, is that the notion that the malpractice system is full of frivolous claims is exaggerated. Of the total amount of money spent on defending malpractice claims, only 13% of that is due to claims where no medical error occurred. That means that the “lion’s share of malpractice costs” are actually spent disputing and paying for errors that did occur.
Second, is that the malpractice system does a reasonably good job of sorting out the meritless claims from the ones that do have merit. In fact, the research found that if the system is flawed, it is flawed against the plaintiffs. One in 6 claims involved errors and yet received no payment, meaning that those patients are shouldering the burden of paying for preventable medical injuries.
While medical malpractice is without a doubt a costly and time-consuming area of litigation, blaming “frivolous” lawsuits is not the answer. The vast majority of the costs involve legitimate claims; figuring out how to make the resolution of those claims more efficient will take us a lot further to reigning in costs than fighting about whether the whole system is flawed.