Medical Malpractice

A while ago, we had a lecture on medical malpractice; much of it was on the nuts and bolts of the law, the process of going through a lawsuit, and reasons patients sue. But I was interested to hear about different views of the medical malpractice system. Proponents say that it is an indispensable tool to police a profession that won't police itself, that the threat of litigation prevents medical errors, and that it provides a venue for justice. Opponents of the malpractice system claim that it is random, only awarding a few patients, costly, encouraging defensive medicine, not correlated with negligence, and counterproductive.

Indeed, the data is shocking; in 1994, cases going to jury trial with a plaintiff verdict had a median award of $300,000 compared to $1.2 million in 2003 (Joint Economic Committee, US Congress, 2003 Data from Jury Verdict Research). Simply the cost of legal counsel is expensive; 64% of cases are dropped or dismissed but the mean defense cost is $18,330, 30% are settled with a mean defense cost of $50,452, 5% go to trial in favor of the defendant with mean defense cost $106,196, and 1% go to trial in favor of the plaintiff with mean defense cost $185,060 (PIAA Claim Trend Analysis, 2008 ed.).

The rising costs of litigation and rising payouts have driven up premiums for malpractice insurance; in Chicago 2008, ob/gyn had a premium of $138,434 (compared to general surgery $98,888 and internists $37,688). This varies widely geographically depending on malpractice reform. Luckily, California's 1975 MICRA act caps non-economic damages to $250,000 and limits contingency fees (that is, the percentage of award money that ends up in the hands of the lawyer rather than the victim).

Does the medical liability system compensate the negligently injured? This is a hard study to do. In 1991, an NEJM article argued that 2% of negligent injuries resulted in a claim and 17% of claims were related to a negligent injury, suggesting that there's poor correlation between negligent injuries and lawsuits. A 2006 NEJM article found that 3% of lawsuits didn't even involve an injury (yet 16% of those paid out). Of those with an injury, 63% had an error (73% paid out, average $522,000) and 37% had no error (yet 28% paid out, average $313,000). They found that 54 cents of every dollar did not go to the plaintiff, but instead went to administrative costs (mostly legal fees).

After these lectures, I am unconvinced that the legal system is addressing medical malpractice correctly. The biggest risk factor for being sued is not making a mistake, but rather having poor communication. Most patients injured through negligence are not compensated and even those who are compensated don't get the majority of the award. Most physicians who are negligent are not sued, and some physicians who are innocent are sued and lose. The costs of this legal system drive up not only premiums but the overall costs of medicine by forcing physicians to act defensively. I think the legal system is not the best way to encourage physicians to improve quality; many problems are systems problems not addressed by malpractice suits.

What can we do? I would not want to limit access to courts (by decreasing statute of limitations or necessitating pre-trial screening panels). Perhaps specialty courts such as the tax court would be better; after all, medicine is incredibly complex and I feel that it is absurd to think that a jury of laypeople can fully understand the issues at hand. Specialty courts with a trained judge may make more sense in such a specialized field. I do think that there should be caps on awards and regulation of attorney fees. The ultimate goals are to compensate the medically injured in an equitable and fair fashion as well as deter and prevent future errors and genuine negligence.