Feedback on NEJM's recent malpractice study

Some feedback on the recent NEJM study which showed that 40 percent of malpractice lawsuits were baseless, and 54 percent of compensation went to the lawyers.

The lead study author (who is a lawyer) concluded “[that the] malpractice system that is stricken with frivolous litigation are overblown”. To be honest, a 40 percent baseless lawsuit rate was much higher than I expected. If anything, the study showed the system being in worse shape than I thought. I’m surprised that the Journal published an otherwise good study with such a biased conclusion.

Robert Centor:

We live in a medical world that defines evidence in a precise way. Lawyers live in a legal world that defines evidence in a very different way. I do not blame lawyers for liking the current system. It does give them the chance to win big settlements. However, I dislike the system. It does not protect many patients from minor malpractice. Unless the lawyer estimates a likelihood of a large settlement, he/she cannot afford to take the case.
Our current malpractice system only works as a punitive system, it does nothing to improve health care. Adopting a system which has the potential for improving health care seems worthwhile.
I do not expect lawyers to understand. The world they inhabit is a world of matching wits, arguments and sophistry. Truth is relative. They live by Nietzsche’s famous quote – There are no facts, only interpretations. But we want to get as close to the facts as possible.

Denise Hunnell:

I am just having a hard time understanding why Mr. Studdert thinks this is evidence those supporting tort reform are in error. Even if a groundless lawsuit does not generate a payout for the patient, it does generate substantial legal fees for the physician, insurance company, hospital, pharmacist, etc. The patient spends half of any award on legal fees. The only ones benefiting from our current system are the attorneys for both sides.
I know we always look at the patient as the victim of this issue. However, I can tell you from personal experience, being named in a lawsuit is a gut wrenching experience for a doctor especially when the claim is groundless. Many years ago, I was one of a whole list of physicians named in a frivilous lawsuit that was eventually dismissed. I knew I had done everything correctly for this patient. The whole ordeal of waiting to be deposed and wondering what this was going to do to my career was extremely stressful. I also felt a strong sense of betrayal. I had established a caring relationship with this patient and had given her the best medical care I could. I knew the suit was being pushed by someone other than the patient, but I still felt betrayed. In the end, I was never deposed. Once the lawyers took the patient’s deposition, the whole case fell apart and went away. It took five years for that to happen. In the meantime, it was a horrible cloud hanging over my medical career. Actually it never went completely away. Because I had been named in a suit, my career had a black mark. Every time I applied for a state license or for hospital privileges or to be a provider on an insurance plan, I had to explain that lawsuit. That experience forever changed the way I viewed the doctor patient relationship.

Update -
Charleston Daily Mail:

But patients continue to file groundless claims without fear of penalty. Only 72 percent of the groundless claims were dismissed out of hand. The rest resulted in some sort of settlement or even jury verdict.
The average payment for a groundless claim, as defined by the researchers, was $313,000 “” not bad compared to $521,000 for a legitimate claim.
The study found that the average claim takes five years to resolve, and that half of each award goes to pay lawyers and other expenses.
Clearly, this study shows the medical malpractice system has major flaws, especially when a person can get $313,000 for “malpractice” when no injury is involved. With so much money going to lawyers, the legal profession has an incentive for pursuing groundless claims, despite its protestations to the contrary.

Comments

Gasman
No American wants the health care delivery system of Canada or any other European country. The severe rationing and restriction of theraputic choice are not desirable to a society that can afford more.
We should however look to their systems for compensating individuals. We have a working model of the same in the Vaccine Compensation system. In such a no fault system the health providers and institutions would not necessarily be adversarial to the patient seeking compensation. More individual can be compensated for injury because claims of moral merit would be economical to press rather than just multimillion dollar claims that lawyers see as footing their bills. Under the present system very few ever see a dollar, and then only if they happen to have the right jury appeal and severity of injury.
Anonymous
Why do you keep parroting the same thing over and over again? There are always going to be lawsuits…just focus on practicing defensive medicine. That way you are sticking it to these litigious people and protecting yourself at the same time. Who said you can’t have your cake and eat it too!
Anonymous
Gasman,
Under your proposed system, would the injured party’s future medical bills be covered regardless of cost? And when you say “no fault”, are you saying that they would be compensated regardless of the existence of negligence?
CJD
Anonymous
At least lawyers are beginning to get their just reward for gaming the system for so long. Caps may be an imperfect solution but the greedy ambulance chasers have only themselves to blame for caps’ widespread support.
Anonymous
It is not 40%, it is 37%, and as the study points out many of them are very close. Also, in many cases initiating a lawsuit is the only way to find out if there was malpractice when it is suspected. Remember there is near no disclosure if errors in the medical community.
And as the study points out, at least as big a problem is the 1/6 victims who have experienced malpractice and are injured and recieve NO payment whatsoever, many crippled and in need of money after years of waiting and hoping for recovery.
In my opinion the biggest problem is that 50%+ of payouts end up going to overhead. There has to be a better way.
Anonymous
Eliminate the expert witness requirement – or better yet, require physicians to serve free of charge as experts on a rotating basis and you’ll eliminate a lot of the overhead.
And, who knows – the “overhead” may be fixed costs like ordering medical records, adjusters salaries, etc., all costs that would not change.
Anonymous
“Eliminate the expert witness requirement – or better yet, require physicians to serve free of charge as experts on a rotating basis and you’ll eliminate a lot of the overhead”
A: What percent of overhead is for expert witnesses?
B: My understanding is the lawyer’s fee is 25-33% on top of expenses.
C: DR’s do “charity” work everyday. They often don’t realize it until after the fact when the insurance then patient’s refuse to pay. Of course they don’t wrap it up in “special” word’s like “pro bonon”. It’s just another day on the job.
D: While I am not against docs serving as gratis expert witnesses (it would cut down “expert witness” jobs and obvious bias based on payment source). When is the last time a lawyer was “required” to do anything for free?
Anonymous
“: What percent of overhead is for expert witnesses?”
I can’t tell you the percent – at least not based on this study – because I haven’t seen the raw data and don’t know how they decided the insurer’s overhead per case. But with a complex malpractice case, with qualified experts, you will expect to spend at least $10-15K minimum, and that’s way low if it tries and they testify.
“DR’s do “charity” work everyday. They often don’t realize it until after the fact when the insurance then patient’s refuse to pay.”
As do lawyers – just because we bill doesn’t always mean we get paid. And insurance defense lawyers deal with the same cuts from insurance companies that doctors do. Pro bono work for lawyers, is charity work that is known to be charity work from the start.
“While I am not against docs serving as gratis expert witnesses (it would cut down “expert witness” jobs and obvious bias based on payment source). When is the last time a lawyer was “required” to do anything for free?”
I don’t think they should have to. But considering that many physicians will, without even seeing the opinion of the physician expert or what it’s based upon, dismiss any plaintiff’s expert as a “whore”, that was simply a solution which I thought might eliminate that bias. The expert witness requirement is one physicians want, but then they don’t want to serve as expert witnesses even for meritorious cases and still want to chastise (to put it mildly) everyone who does. Or at least everyone who does for the plaintiff.
Lawyers can be appointed by a judge to handle a case pro bono, by the way.
Anirban
Good idea. why not require plaintiffs’ lawyers to represent Med Mal victims by rotation , as the judges require for free or at least for a flat rate.
Anonymous
Are you going to pay their expenses?
Anirban
“Are you going to pay their expenses?”
Are you ready if court pays it for you ?
Anonymous
Where the hell am
I supposed to get these “expert witnesses” the lawyers tell me I need? I can’t use doctors I know that’s illegal. I can’t imagine doctors in my field want to get involved in such a muckraking load of garbage. Is their a service that hires “experts” to defend you?

Feedback on NEJM’s recent malpractice study

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