Too Many Malpractice Lawsuits or Too Much Malpractice?

Dan Frith

Contributor

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We've listened to George Bush, various national, state, and local medical organizations, and the insurance industry cry long and hard about the need to reform medical malpractice laws in the United States. Frivolous lawsuits they claimed...running doctors out of the practice of medicine they claimed. My response...BS!

I challenge anyone to deny the reality that:

1. Most Americans injured by medical malpractice do not sue.
2. Most lawsuits are not frivolous and courts efficiently weed out weak claims.
3. Jury awards have not spiraled out of control, and lawsuits have not reduced access to doctors.

Here are the facts:

1. In a landmark study, the Institute of Medicine of the National Academy of Sciences estimated that medical errors kill up to 98 000 US hospital patients each year (Kohn LT, Corrigan JM, Donaldson MS, editors. To Err is Human: Building a Safer Health System) In 2004, Healthgrades, an independent health care ratings company, reported nearly double that figure. Its examination of 37 million patient records from all 50 states, representing 45% of all U.S. hospital admissions, found 195 000 hospital deaths from preventable medical errors annually between 2000 and 2002.
2. Evidence that medical malpractice in the U.S. greatly exceeds malpractice lawsuits has been available since 1974, when California's medical and hospital associations sponsored a study intended to support their efforts to get lawmakers to pass tort reform. Instead, it found that doctors and hospitals negligently injured 0.8% of hospital patients (Mills DH, editor. Report on the Medical Insurance Feasibility Study. Sacramento: California Medical Association and California Hospital Association; 1977). A later analysis of the data found that, at most, only 1 in 75 of those injured were compensated (Danzon, Patricia A. Medical Malpractice: Theory, evidence and public policy. Cambridge: Harvard University Press; 1985).
3. The notion that frivolous lawsuits abound is also unsubstantiated. A 2007 study by Public Citizen showed the court system was "on the whole, a rational one that provides money for valid claims and dismisses invalid ones." Using data from the U.S. government's National Practitioner Data Bank, the consumer nonprofit group concluded that complaints by "the business and medical lobbies are exaggerated and unsupported by the facts."
4. The evidence is that jury awards are simply keeping up with the costs of medical care, rather than being out of line. In 2005, Dartmouth College economists studied payments made to patients between 1991 and 2003. Actual payments, not jury awards, grew an average of 4% annually — slowing to 1.6% a year since 2000 — or 52% since 1991, roughly equivalent to increases in health care costs. A 2004 RAND study examining 40 years of jury verdicts concluded that average payouts grew by less than real income, with more costly medical care responsible for more than half the growth in jury awards.
5. Malpractice insurance and claims account for, at most, 2% of U.S. health care spending, according to the U.S. General Accounting Office, the investigative arm of Congress.

Who is willing to take on my challenge?