In the debate over tort reform, physicians argue that the malpractice system is burdened by too many frivolous lawsuits. In response, trial lawyers point out that physicians commit medical negligence far more often than they are sued for medical malpractice. The trial lawyers therefore argue that the number of lawsuits is actually much lower than could be justified.
While the trial lawyers' argument is factually correct, the mere fact that there are fewer malpractice lawsuits than there are incidents of medical negligence hardly proves that the system is lenient, or even functional for that matter. In fact, if we apply the trial lawyers' reasoning to our criminal system, we could infer that justice was being served as long as the number of people in jail did not exceed the number of crimes committed. Of course, to most of us, it would also be important that the people in jail actually committed the crimes in question. And, so too is the issue with medical malpractice.
The relationship between medical negligence and malpractice litigation has been prospectively evaluated in two large studies. The first was conducted in New York in the 1980's (1), and the second in Utah and Colorado in the 1990's (2). The studies used identical methodology - thousands of hospital records were evaluated for the occurrence of a medically-related, adverse event; it was determined whether the adverse event was caused by medical negligence (as opposed to merely an unavoidable complication of proper medical care); and, the groups were followed to ascertain which patients subsequently filed a lawsuit.
The study results were nearly identical:
The number of patients injured by medical negligence exceeded the number of lawsuits by six to one;
The majority of lawsuits were filed by patients who had NOT been injured by medical negligence (84 and 78%);
Half of the patients (47 and 55%) who filed lawsuits had not even suffered a medically-related, adverse event (i.e., their condition simply reflected the natural history of their disease); and,
The vast majority of patients who were injured by medical negligence did NOT file a lawsuit (98 and 97%).
Paradoxically, most of the patients who were injured by negligent care did not sue, while most of the patients who sued were not injured by negligent care.
Unfortunately, the results of the litigation were not any more encouraging. Although one could make a good argument that 80% of the lawsuits were without merit (i.e., they lacked medical negligence), and that half of them were frivolous (i.e., they lacked an adverse event), they were not adjudicated in that manner. In fact:
42% of patients who suffered no adverse event received compensation (mean $28,000);
46% of patients who suffered an adverse event which was unrelated to medical negligence received compensation (mean $97,000); and,
55% of patients who were injured as a result of medical negligence received compensation (mean $67,000).
However, 89% of cases involving permanent disability received compensation (mean $202,000).
In a multivariate analysis, the degree of disability was the only predictor of payment. In other words, the patient's degree of disability determined how likely he was to receive money. Nothing else mattered (3).
The data suggests that the medical malpractice system is, by traditional measures of justice, dysfunctional. And, the problem is so far-reaching that it even undermines many of our risk management efforts. For example:
If we eliminate every medical error, 80% of lawsuits will remain (with the mean payment unchanged);
Our efforts at better communication in the wake of an adverse event are attenuated by the fact that more than half of lawsuits are filed by persons who did not suffer an adverse event; and,
Our efforts at persuading patients, who have been injured by medical negligence, to forgive us rather than sue us, are compromised by the fact that 98% of these persons are not going to sue in the first place. And, even if they all forgive us, 80% of lawsuits will remain.
These grim statistics are not a reflection of the inherent value of our risk management ideas, but rather of the dysfunctional environment in which they must be implemented.
While no legal system will ever be perfect, the adjudication of medical malpractice lawsuits is not even close. In its present form, the medical malpractice system functions as provider-funded, disability insurance, which will make payment to virtually any patient who has permanent disability and wishes to apply.
1. NEJM 1991;325:245-251.
2. Med Care 2000;38:250-60.
3. NEJM 1996;335:1963-1967
