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
