11 May 2006

Harvard's Medical Malpractice Case Study

The Harvard School of Public Health did a study of medical malpractice cases published in Thursday's New England Journal of Medicine (abstract here).

Many of the lawsuits analyzed contained no evidence that a medical error was committed or that the patient suffered any injury, the researchers reported. . . .

[T]he Harvard researchers reviewed 1,452 malpractice claims randomly selected from five insurance companies. The cases were resolved -- meaning they ended in a verdict, a settlement or a dismissal -- between 1984 and 2004.

The claims resulted in a combined $449 million in verdicts and settlements.

The researchers examined medical records, depositions and court transcripts to determine if the patients were injured and whether the injury was due to a medical error.

It found that 97 per cent involved a severe disability or death, while 3% involved no verifiable medical injury. Note that some medical malpractice cases, those involving indignity to the patient causing only emotional harm (such as circulating embarassing photos of a person secured in violation of medical ethics around a medical office, for example), would probably not count as a verifiable medical injury for purposes of the study, nor would some cases where pain associated with a soft tissue injury was the only reported harm.

Only 6 cases in the sample were found by the researchers to involve no verifiable medical injury, and yet still resulted in some compensation to the patient (84% were dismissed without any compensation payment), and some of those payments could have been token payments only.

It found that 27% were dismissed without any judgment or settlement payment to the defendant in cases that the researchers felt lacked merit, that 10% resulted in a judgment or settlement payment in a case that the researchers felt lacked merit, that 46% involved medical mistakes causing injuries and were settled or resulted in judgments, and that 17% of cases were found to involve medical mistakes causing injuries and were dismissed.

Thus, the current system is roughly accurate only, and appears to be biased against patients as it dismisses meritorious cases more often than it pays cases where the researches found no evidence of a medical mistake or no injury.

Some of the cases the study viewed as not involving medical mistakes, however, cast doubt on the methodology used by the researchers. For example:

In one instance, a young woman with no family history of breast cancer underwent routine breast exams for four years and came back with a clean bill of health.

But doctors later found she had breast cancer that had spread to other parts of the body.

The researchers determined the case did not involve medical error because proper procedures were followed. The woman filed a malpractice claim and received an undisclosed settlement.

In a case like that one, of course, there is not going to be any documentation that one or more of the breast exams was conducted improperly, but it is nevertheless reasonable, indeed likely, that in fact, one or more of the exams was improperly conducted because it would be unlikely for breast cancer to reach such an advanced state in the course of one year. An absence of direct evidence does not always, or even often, mean that a mistake was not made by the medical professionals involved. Indeed, in any failure to diagnose case, the absence of documentary or testimonial evidence of a mistake can itself be damning. Fault is a slippery thing.

One suspects that procedural mistakes by the patient's counsel and failures to meet the statute of limitations requirements would be common causes for dismissals of meritorious claims, although jury decisions are also relevant.

Medical malpractice attorneys are not dumb, and medical doctors are less likely to settle cases where they don't feel that they have done something wrong than any other kind of defendant in my experience, in part, because the settlements can't be truly confidential due to regulatory requirements. The study states that the average settlement in cases where there was no identified medical mistake was $313,000, and in truth, smart doctors and attorneys don't pay that kind of money in truly groundless and frivilous cases. Cases found by researchers to involve both injuries and mistakes resulted in larger payments (an average of $521,560), however, which indicates that close cases require both sides to recognize that they are not slam dunk cases.

With regard to administrative costs the study found that:

For every dollar spent on compensation, 54 cents went to administrative expenses (including those involving lawyers, experts, and courts). Claims involving errors accounted for 78 percent of total administrative costs.

This shows that defense efforts in cases of genuine injury are responsible for far more litigation costs than groundless or frivilous cases.

According to the abstract: "Overall, claims not involving errors accounted for 13 to 16 percent of the system's total monetary costs." This would involve both settlement payments and administrative costs. According to the absract, about claims not involving errors according to the study accounted for 22% of administrative costs, that administrative costs were 54% of the total, and that 13-16% of total monetary costs went to cases not involving errors according to the study. Thus, contrary to the media report, only 2-11% of total settlement payments and judgments went to cases which the study found to not involve errors.

When only about 5% of compensation payments went to people who weren't injured or to cases where there were no injuries, that isn't bad at all.

The study also shows that a strict liability system, which would provide full compensation to any suffering from a serious medical injury, regardless of whether or not the doctor was at fault, and thus dramatically reducing the amount of administrative costs involved in handling claims, would cost doctors no more than what they are paying now, while providing compensation to many more people than the existing system does, including the one in six people who now bring meritorious claims only to have them rejected by the legal system.

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