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'Frivolous' Claims Make Up Small Share of Malpractice Suits

Eliminating these claims wouldn't solve the problem, study finds

Please note: This article was published more than one year ago. The facts and conclusions presented may have since changed and may no longer be accurate. And "More information" links may no longer work. Questions about personal health should always be referred to a physician or other health care professional.

By Amanda Gardner
HealthDay Reporter

WEDNESDAY, May 10, 2006 (HealthDay News) -- New research shows that most malpractice litigation results from legitimate claims, and that eliminating "frivolous" lawsuits won't improve things.

"Some people have suggested that the system is overrun with frivolous litigation. Our findings don't support that," said study author David M. Studdert, an associate professor of health policy and management at Harvard School of Public Health, in Boston. "The system is doing a reasonable job of channeling compensation to the right sorts of claims."

"These findings are absolutely no surprise to any of us in the policy community. They are consistent with everything we suspected and learned from research over last 20 years, which is that the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated," added Dr. William Sage, a professor of law at Columbia University in New York City.

At the same time, however, the overhead costs of this litigation remain exorbitant, suggesting that reducing that expense might be a better idea.

In the long-simmering debate over medical malpractice litigation, critics claim that frivolous litigation is both widespread and costly. Such advocates of tort reform charge that malpractice lawsuits are driving up the cost of health care.

The issue has long been a political hot button, and the Senate is expected to vote soon on whether or not to impose a federal cap on non-economic damages in malpractice suits.

Previous research has indicated that most patients who sustain a medical injury do not sue. But there is little evidence on the validity of lawsuits that do occur.

For this study, which appears in the May 11 New England Journal of Medicine, a panel of trained physicians reviewed 1,452 closed malpractice claims from five liability insurers to determine if a medical injury really had occurred and, if so, whether or not it was due to medical error. The physicians focused on the areas of surgery, obstetrics, medication and missed or delayed diagnosis which, together, account for about 80 percent of all malpractice claims filed in the United States.

There were no verifiable medical injuries for 3 percent of the claims, and 37 percent did not involve errors.

But the majority of claims not associated with errors (72 percent) or injuries (84 percent) did not result in compensation, either. On the other hand, most of the claims that involved injuries due to error (73 percent) did result in compensation.

When claims not involving error did receive compensation, it was generally lower than claims that did involve an error ($313,205 vs. $521,560).

Almost three-quarters of claims involving error received compensation. "We were a little bit surprised about the system's accuracy in the sense that it got things right about three-quarters of the time," Studdert said. "That was a little higher than we expected."

But even when working three-quarters of the time, there were still significant problems.

"There are a couple of pretty troubling aspects of the system that come through these findings," Studdert said.

One is the amount of time -- an average of five years -- from the time of injury to the time a claim is resolved. "That's a long time for people to be sitting around living in uncertainty," Studdert said.

Another problem were the costs of litigating, which averaged $52,521 per claim, or 54 percent of the compensation paid to plaintiffs.

"The overhead costs even for legitimate claims were really expensive," Studdert said. "By the standards of compensation systems, that's really, really high."

"The rise in defense costs also tends to squeeze out smaller claims," Sage added.

And the lion's share of both direct compensation costs (money paid to plaintiffs) and administrative costs were connected to cases involving errors, leaving only 13 percent to 16 percent of costs linked to claims that don't involve errors.

"Ridding the system of frivolous claims is likely to save money, but not a great deal," Studdert said. "Major savings are going to depend on reforms that make resolving an average claim faster and cheaper. That's going to be very difficult given the adversarial nature of the current system, with its reliance on lawyers and so forth. We think that simpler, more streamlined systems like mediation or arbitration, which will take the average claim and get it resolved for less money would be a substantial improvement."

"The fix is doing a better job compensating the meritorious claims," added Sage. "That, of course, can only be done incrementally. You can't just snap your fingers. We can do a whole lot better job than we're doing."

More information

The Project on Medical Liability in Pennsylvania has more on medical liability.

SOURCES: David M. Studdert, LL.B., Sc.D., associate professor, health policy and management, Harvard School of Public Health, Boston; William Sage, M.D., J.D., professor, law, Columbia University, New York City; May 11, 2006, New England Journal of Medicine

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