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RESEARCH COUNTERS FUROR OVER MALPRACTICE LAWSUITS
By Carl T. Bogus
Frivolous and junk lawsuits are threatening medicine across the country, we are told. State legislatures from Maryland to Florida are considering legislation to address the problem. Malpractice premiums are skyrocketing, driving physicians out of practice. In some areas, lawsuits have forced so many doctors out that expectant mothers no longer can find obstetricians willing to deliver their babies.
At least that is what we have been led to believe.
The specter of spiraling, unjustified lawsuits forcing dedicated physicians from practice is alarming indeed. But it's a false image.
There are problems in the health care industry, to be sure. But before making a diagnosis, a good doctor examines the facts, and we should do the same. In fact, a lot of data bear upon the relationship between malpractice litigation and the health care system, and little of it supports conventional wisdom. Moreover, trying to cure what ails the system by curbing lawsuits would make the health care system more dangerous.
First, there is no explosion in medical malpractice litigation. Data compiled by the National Association of Insurance Commissioners show that, from 1995 to 2000, new medical malpractice claims declined by about 4%.
Second, weak cases seldom succeed. The popular image holds that jurors are overly sympathetic to patients with unfortunate medical outcomes regardless of whether anyone is to blame. However, research on juror attitudes shows nearly the opposite.
More than 80% of people beginning jury duty say they believe there are too many frivolous lawsuits, according to researchers Valerie Hans and William Lofquist. Only a third believe most plaintiffs have legitimate grievances. Those are difficult predispositions to overcome, and, in fact, most plaintiffs do not.
The rate of victories for plaintiffs in medical malpractice trials is about 30%, lower than in any other category of litigation, according to a 1996 study by the National Center for State Courts. To win, plaintiffs need strong evidence.
Studies show a high rate of agreement between jurors and judges, and even neutral medical experts, on the question of whether a plaintiff was injured as a result of malpractice. A study in the Annals of Internal Medicine found that plaintiffs' win rates do not increase with the severity of injury.
When jurors are convinced that malpractice is the culprit, they can render large verdicts. About 15% of such verdicts now exceed $1 million. However, the trial judge and appellate courts are required to reduce excessive awards. Several studies show that the total sums of jury verdicts exceeding $1 million are paid in 25% or fewer cases.
What caused soaring medical insurance premiums? A key factor appears to have been the downturn in the stock market, only recently reversed, which reduced insurance company reserves and investment income. Medical malpractice insurance in four states was thrown into chaos when one of the largest insurers, The St. Paul Companies, stopped writing malpractice policies. But St. Paul 's problems resulted largely from investment losses, including at least $70 million in Enron.
The unpleasant reality is that there is too much medical malpractice. According to the Institute of Medicine , 44,000 to 98,000 hospital patients die every year from preventable accidents, and many others suffer sever and permanent injuries.
Some malpractice is inevitable. Doctors are mortals; even the best make mistakes. About 5% of physicians account for the majority of all medical malpractice claims, according to reports filed with the National Practitioner Data Bank. Unfortunately, the medical disciplinary system is weak. Among doctors who have paid five or more malpractice claims, only 13.3% have been subject to professional discipline, according to Public Citizen's analysis of the data.
The most privileged among us may not have to worry about being treated by a doctor with a bad record. But the rest of us do. The civil justice system is a flashlight shining into the dark corners of the medical delivery system. Let's not dim the bulb.
Carl T. Bogus is a professor at Roger Williams University School of Law in Bristol , R.I. , and author of Why Lawsuits are Good for America .
1. It is claimed that health reform is a key element in a pro-growth agenda and would have made a difference to benefit the economy. It is said that the proliferation of medical malpractice lawsuits are a national problem that needs a national solution.
Medical malpractice costs as a proportion of national health care spending are:
a. $50 out of every $100 spent
b. $10 out of every $100 spent
c. $0.60 out of every $100 spent
d. $1.50 out of every $100 spent
ANSWER: C (60 cents). “Fact Sheet: Insurers and Lobbyists Admit Tort ‘Reform' Won't Help the Medical Malpractice Liability System and It Won't Reduce
Premiums . . . ,”ATLA, 2003.
In fact, malpractice premiums have declined from 0.95% in 1988 to 0.56% in 2000.” Testimony of Travis Plunkett, Legislative Director of Consumer Federation of America before the Subcommittee on Health of the House Committee on Energy and Commerce, Consumer Federation of America , 7/17/02 .
“Prescription drugs, on the other hand, make up about 11% of all health costs—and are projected by the centers for Medicare and Medicaid Services to reach 14% in 2010.” Id.
Payouts and premiums for medical malpractice claims accounted for less than one percent ( 1% ) of total health care costs. “Medical Malpractice Insurance: Stable Losses/Unstable Rates,” Americans for Insurance Reform, 2003.
2. What is the seventh (7 th ) leading cause of death in the United States ?
a. Heart Disease
b. Tobacco-related illness
c. Medical errors
d. Breast Cancer
e. AIDS
ANSWER: C (medical errors). “To Err is Human: Building a Safer Health System,” Institute of Medicine Report ( IOM ), November 1999. 44,000 to 98,000 patient deaths due to medical errors every year—more than those from highway accidents, breast cancer or AIDS. Put in perspective, it is equivalent to an airplane crash, each day for a year, in which 268 people die!
Only one in seven of these events results in a lawsuit. Twenty-seven percent of deaths in the ICU are preventable. 500,000 surgical site infections cause 20,000 deaths a year.
“Beyond their cost in human lives, preventable medical errors exact other significant tolls. They have been estimated to result in total costs (including the expense of additional care necessitated by errors, lost income and house-hold productivity, and disability) of between $17 billion and $29 billion per year in hospitals nationwide.” IOM Report, November 1999.
CATHERINE ROMMAL, RNS, BS, FASHRM, Manager Education Services and Product Development, Farmers Insurance Group, Healthcare Professional Liability Division, Los Angeles , California . Record review studies like the Institute of Medicine report underestimate medical errors and deaths. It is unlikely that reviewers discovered adverse events that didn't occur. There is much concealment. Many of the problems are discovered after patients are discharged. Errors increase with prospective rather than record review studies (like IOM ).
One in 50 hospitalized patients are injured due to negligence. One in 10 hospitalized patients injured due to negligence file lawsuits. Source: Dr. Richard G. Roberts, chairman of The American Academy of Family Physicians, Professor of Family Medicine, University of Wisconsin Medical School.
3. In 1962 the average federal judge conducted:
a. 39 trials a year.
b. 13 trials a year
c. 27 trials a year
d. 60 trials a year.
ANSWER: A (39 trials a year). “ U.S. Suits Multiply, but Fewer Get to Trial, Study Says,” NYTimes.com Article, Adam Liptak, December 14, 2003 . Study: Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics, for the American Bar Association.
4. What percent of all civil cases in federal court went to trial in 1962?
a. 67.3%
b. 46.7%
c. 1.8%
d. 11.5%
ANSWER: D (11.5% [1962]). “U.S. Suits Multiply, but Fewer Get to Trial, Study Says,” NYTimes,com Article, Adam Liptak, December 14, 2003 . Study: Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics, for the American Bar Association. 12,529 civil cases were tried in federal court in 1985. Source: “ U.S. Suits Multiply, but Fewer Get to Trial, Study Says,” NYTimes.com Article, Adam Liptak, December 14, 2003 . Study: Marc Galanter, who teaches at the University of Wisconsin and the London School of Economics, for the American Bar Association.
5. In 2002 the average federal judge conducted:
a. 39 trials a year.
b. 13 trials a year.
c. 27 trials a year.
d. 60 trials a year.
ANSWER: B (13 trials a year). “U.S. Suits Multiply, but Fewer Get to Trial, Study Says,” NYTimes,com Article, Adam Liptak, December 14, 2003 . Study: Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics, for the American Bar Association. 4,569 civil cases were tried in federal court in 2002. Source: “ U.S. Suits Multiply, but Fewer Get to Trial, Study Says,” NYTimes.com Article, Adam Liptak, December 14, 2003 . Study: Marc Galanter, who teaches at the University of Wisconsin and the London School of Economics, for the American Bar Association.
6. What percent of all civil cases in federal court went to trial in 2002?
a. 67.3%
b. 46.7%
c. 1.8%
d. 11.5%
ANSWER: C (1.8% [2002]). “U.S. Suits Multiply, but Fewer Get to Trial, Study Says,” NYTimes,com Article, Adam Liptak, December 14, 2003 . Study: Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics, for the American Bar Association. The percentage in Utah in 2001 was approximately 1.2%. Source: Paul Cassell, United States District Judge.
7. Since 1989 (the past 15 years), Utah has required that 50% of all punitive damage awards in excess of $20,000 (after attorneys' fees and costs) be remitted to the state treasurer for deposit into the General Fund (U.C.A. § 78-18-1(3)). Since enactment of this law the total punitive damage awards in Utah have enriched the General Fund by:
a. More than $100,000 but less than $1,000,000.
b. More than $10,000 but less than $100,000.
c. Less than $10,000
d. More than $1,000,000.
Answer: C.(Less than $10,000). Utah State Treasurer's office and Utah Attorney General's office
8. Which of the following apply to physicians under Utah statutes?
a. Caps on damages
b. Elimination of the collateral source rule
c. Mandatory periodic payment of judgments awarded
d. Mandatory arbitration
e. Statutes of limitations or repose
f. All of the above
ANSWER: A, B, C (in some circumstances), D and E). Utah Code Ann …, 78-14-1, et seq. Essentially none of the above apply to architects, lawyers, accountants or bankers; and most, if not all, have been held unconstitutional by various state courts.
9. True or False: Huge numbers of injury and death lawsuits are filed every year, clogging the courts.
ANSWER: False. Tort lawsuits (including personal injury of all types, property damage only, medical malpractice and wrongful death) constitute a tiny fraction of all filings. In 2002, those cases accounted for 0.735% of all filings in the State's District Courts (not seven percent, less than ¾ of one percent ). In 2003, they accounted for 0.944% of filings. Nearly as many were disposed of as were filed each year.
By contract, other general civil filings (business disputes, contract claims, foreclosures, and other similar categories) accounted for between a quarter and nearly a third of all filings (2002 = 26.77%, 2003 = 31.72%).
Likewise, the numbers of criminal and domestic cases filed each year were dramatically higher than tort cases:
• criminal 18.44%, domestic 7.19%
• criminal 16.39% domestic 8.13%
Source: Utah State Courts website
10. Who made the following statement about the importance of trial by jury: “Representative government and trial by jury are the heart and lungs of liberty. Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and house.”
a. Martin Luther King, Jr.
b. John Adams
c. Patrick Henry
d. Lyndon Johnson
e. Franklin D. Roosevelt
ANSWER: B (John Adams). UTLA Tort Quiz, 1994
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