One of the driving forces behind tort reform in malpractice, both in Maryland and around the nation, is that these claims are usually frivolous and result in undeserved compensation for patients and their medical malpractice lawyers.
This month, the New England Journal of Medicine addressed this issue in a study of 1,500 randomly selected malpractice cases. The neat thing about the study is that impartial doctors reviewed the experts’ opinions in the pending cases and then assessed whether each patient was injured and, if so, whether medical malpractice was the cause of the patient’s injury. In a way, they allowed the independent experts to act as judge and jury.
You might expect the impartial reviews of doctors to be biased toward findings of no medical negligence. You are probably right. But, still, the study found that 63% of the injuries were found to be the result of medical malpractice. As it turns out, jurors are easier on doctors than a panel of doctors would be. The caveat — and it is a big one — is that those same doctors would not find liability in 63% of the cases if they were serving on a jury. That is very different context.
More importantly, the study found the system generally works. Of valid medical malpractice claims, most received compensation. In contrast, where the impartial doctors found no medical malpractice, those patients generally did not recover. The study further found that healthy people successfully suing physicians for medical malpractice is very uncommon and is far outnumbered by instances where medical malpractice goes unreported.
This is another blow to the claim that we need medical malpractice reform in Maryland. After claiming a crisis of unprecedented proportions last year Medical Mutual, Maryland’s largest medical malpractice insurance carrier, announced that medical malpractice insurance rates would not rise in 2006, presumably because claims fell from $93 million in 2003 to $78.5 million in 2004.
I think most Maryland doctors have realized this and have begun to focus their energies towards reform of their negotiating rights with health insurance companies as to the rates of compensation for medical services. Time Magazine wrote an interesting cover story on this last week.
Other interesting findings in this malpractice study
- Most malpractice claims are the result of medical malpractice. This is a dagger to the heart of the notion that most malpractice cases are manufactured by medical malpractice lawyers. In 63% of the cases where impartial doctors found an injury, it was found to be the result of medical malpractice. Perhaps even more significantly in this battle for tort reform in Maryland and elsewhere, few of the claims where no medical malpractice was found were considered frivolous. The authors wrote that the claims where the impartial doctors found no medical malpractice did not square with the notion of opportunistic personal injury lawyers pursuing lawsuits that lacked merit. Rather, the authors stated their findings underscored “how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.” In other words, while they may have found no medical negligence, they can see how the personal injury lawyers and their victims thought there was negligence before discovery had been conducted.
- 85% of medical malpractice cases reviewed resulted in a settlement before trial.
- In 8% of medical malpractice cases that went to trial, the defendant doctors prevailed.