Almost half of malpractice cases are frivolous

Both sides of the tort reform debate are using this study as ammunition:

About 40 percent of the medical malpractice cases filed in the United States are groundless, according to a Harvard analysis of the hotly debated issue that pits trial lawyers against doctors, with lawmakers in the middle.

Many of the lawsuits analyzed contained no evidence that a medical error was committed or that the patient suffered any injury, the researchers reported.

The vast majority of those dubious cases were dismissed with no payout to the patient. However, groundless lawsuits still accounted for 15 percent of the money paid out in settlements or verdicts.

I’d say that a 40 percent “frivolous rate” is pretty high. The fact that 15 percent of these baseless lawsuits still resulted in payouts continues to indicate a broken tort system.

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  • Anonymous

    According to the authors, “”Some people have suggested that the system is overrun with frivolous litigation. Our findings don’t support that,” said study author David M. Studdert, an associate professor of health policy and management at Harvard School of Public Health, in Boston. “The system is doing a reasonable job of channeling compensation to the right sorts of claims.”

    But maybe Kevin is citing to a different study than the one he linked. Or maybe he thinks the authors don’t know what they’re talking about when they make conclusions about their own study.

  • Anonymous

    “Many current tort reform initiatives, such as caps on noneconomic damages, are motivated by a perception that ‘jackpot’ awards in frivolous suits are draining the system,” says researcher Michelle Mellow, PhD. “But nearly 80% of the administrative costs of the malpractice system are tied to resolving claims that have merit.”

  • Anonymous

    He, he… and how much of that money goes to patients ?

  • Anonymous

    You fool it’s not about the patients. It’s about my porsche payments.

    CJD

  • Anonymous

    Why the tort reformers are touting about caps.. caps.. caps..,what they should do instead is to push for paying the defendents costs for losing .Med Mal is not the only aspects needing reform. paying the winning attorneys fees will( consider a win even if the case is dropped ) and other administrative costs will go a long away in every walk of life.that sounds fair. The question remains does anybody want that? A low volume of case if bad for plaintiffs lawters is bad for the defencce as well,by the strings attached. I think we just fetishise with Med-mal cases than reforming our legal system as a whole

  • Anonymous

    “I think we just fetishise with Med-mal cases than reforming our legal system as a whole”

    Well…..of course it’s a med blog.

    I actually think caps are a band-aid that does not adequately compensate some people. A better system for everyone would be a loser pays system in which cases would be screened by a board of non-biased medical to weed out the BS (with oversight by medically exposed legal/laypeople to keep the system honest). Do you think this will ever happen with our contigency system. With who makes the laws….never.

  • Anonymous

    Obviously this study is mixed. Neither lawyers nor doctors can claim total victory here.

    However, I think its a serious problem when 4 out of 10 suits are by definition “frivolous”

    The study authors seem to think that since very few of the frivolous suits resulted in payment, that its essentially a “no harm, no foul” situation.

    However, that conclusion DIRECTLY contradicts their finding that ALL suits, whether frivolous or not, take a long time and a lot of money to resolve. Even frivolous suits require tens of thousands of dollars.

    Frivolous suits should be removed by summary judgment. My lawyer friends tell me that all friv suits are handleed this way. This study shows that to be BS. Another favorite claim of my lawyer friends is that lawyers will go out of business if they file friv suits. Once again, this study proves this to be BS.

    If 40% of suits are really frivolous, that means tons of lawyers should be going out of business. But of course thats not whats happening.

    The financial calculus behind suits is simple. Frivolous lawsuits are perfectly acceptable, as long as you have some legit suits to make up for them.

    One lawyer I know closed 35 medmal lawsuits last year. Of those 35, 22 were dismissed with no trial (i.e. frivolous lawsuits by definition), 9 were settled out of court, 3 were lost in trial, and he won 1 case.

    Now based on that data alone, you’d assume he would be going out of business right? After all how can you lose so many cases and still stay in business? However, this guy did great financially. He’s not a multi-millionaire, but definitely in the upper middle income range.

    That 1 case he won resulted in a fat lawyers fee of over $800,000, which was MORE THAN ENOUGH to cover his losses on all the frivolous lawsuits he lost.

    Summary: med mal law is analogous to throwing feces to a wall and seeing what sticks.

  • Anonymous

    I would bet that a healthy percentage of both frivolous and legitimate suits would disappear if clinics and hospitals had systems in place through which patients could discuss problems they may be having with their care. Try to discuss a concern with them now and you get a letter (because they never permit a dialogue) which says, essesntially, “We have reviewed your complaint and we have determined we are right about everything. This is our final review.” No explanation, no discussion, no compromises.

    I strongly suspect many Patient Relations/Risk Management offices today exist mostly to profile patients that they think might pose a lawsuit risk and “proactively” silence them by such means as terminations, using such grounds as “past interactions” which leave the patient unable to defend him/herself. Thus, they bring lawsuits on themselves.

  • Anonymous

    “Frivolous suits should be removed by summary judgment. My lawyer friends tell me that all friv suits are handleed this way. This study shows that to be BS. “

    No it doesn’t. This study didn’t tell you at what stage these “frivolous” suits were stopped. Nor did it reach the conclusion that 40% of all suits were “frivolous”. It said of the 37%, at least 16% were “close calls”. What “close calls” means, I don’t know, but it would seem that if it were close, it would not be frivolous.

    And remember, this study appears to include only filed cases. Pre suit settlements are also part of the tort system, although not officially.

    And if your friend lost 25 out of 35, and presuming the average cost (according to the insurers) of taking a med mal case to trial is $100,000, he most certainly did NOT have a very good net off of just one $800,000 fee.

  • Anonymous

    “You fool it’s not about the patients. It’s about my porsche payments.

    CJD”

    where “my” = plaintiff lawyer.

  • Anonymous

    Do you two share a brain?

  • Anonymous

    “I would bet that a healthy percentage of both frivolous and legitimate suits would disappear if clinics and hospitals had systems in place through which patients could discuss problems they may be having with their care”

    No, because this would not stop the epidemic of suits that are brought about for one reason: Bad outcomes. A “complaint office” will not help patients stop smoking 3 Rocks of cocaine a day, drinking till they fall down, showing up at the ER only when they’re too drunk to walk, and falling and hitting their heads because of all of the above. Then the family shows up out of nowhere, and wants to know why did “the ER SCREW UP”, when mom dropped dead after doing all those drugs.

  • Anonymous

    “No, because this would not stop the epidemic of suits that are brought about for one reason: Bad outcomes.”

    If this statement were true, you’d be correct. Unfortunately, studies like this one show that it’s not. As do studies performed by other physicians.

    You’re still batting .000. Hopefully your medical diagnosis rate is a little better.

  • Get your terms straight.

    Your usage of “frivolous” is misleading. A losing case or one in which the evidence or lack of it favors the defendent is not by definition frivolous.

    Frivolity must include the lack of a good-faith basis to bring a claim.

    The author’s of the study noted themselves that 16% of the 40% cases you call “frivolous” were “close calls”. Of the remainder, there may have been bad outcome and a legitimate question that some error or ommission led to the harm. In other’s there may have been a serious error that put the plaintiff in harms way, but resulted in no significant additional illness or loss of money.

    There were probably some cases were the defendent and/or his lawyer filed without a good-faith belief that a tort had been committed… but they were probably not a large percentage of the 40%.

    Some times issues of negligence, injury, and causation in medical cases are complex and need review of the complete record and deposition to settle. It sometimes requires filing suit to get a full appraisal of the evidence. If it should later turn out that there is no reasonable basis for maintaining a claim, that does not mean the filing was “frivolous”.

    You are using a loaded term when you use that word and you should use it appropriately.

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