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.
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.
