Posted by Bill Sandweg on 13 March 2023.

There is a comfortable myth in which doctors love to wrap themselves.  It is the myth that most medical malpractice cases are frivolous attempts to extort money from doctors.  According to the myth, doctors are the good guys and lawyers representing patients are crooks and shysters.  The public never really gets to see the facts that would let them decide if this myth is true or not.  The true facts are hidden behind a wall of secrecy and non-disclosure agreements that doctors use when they settle claims against themselves.  Every once in a while though, someone does get access to the facts and what they find blows the myth to smithereens.  Such was the case in 2006 when a team of trained physicians examined malpractice insurance company closed files as part of an investigation to see just how many frivolous cases there actually were.  What they found will certainly be surprising to the average member of the public.

The results of their investigation were published in the New England Journal of Medicine (NEJM), one of the most prestigious medical journals in the United States.  The study was extensive.  The physicians reviewed almost 1,500 closed files from five different companies insuring doctors for medical malpractice.  These files each showed the claims made against the doctor or doctors, what the claimed injury was, the medical evidence in the case, whether any money was paid on the case, and what expenses were paid defending the case.  For geographical balance, companies were chosen which insured doctors all over the country.  Highly trained obstetricians reviewed files involving obstetrical claims.  Internists reviewed files involving internal medicine claims and surgeons reviewed files involving surgical claims.  The files were randomly selected.  Each claim was evaluated and scored 1 to 6 as to whether there had been a medical error and whether that error had caused an injury.  Claims that received a score of 4 or more from the doctors were considered to have been cases in which the injury was caused by a medical error.

Before analyzing the claims that were made, the investigating physicians recognized that only a few of the patients injured by medical errors ever make a claim.  As they noted, “Previous research has established that the great majority of patients who sustain a medical injury as a result of negligence do not sue.”

When they did get to the claims data, there were some very significant findings.  The first of these was that there were only a small number of claims for which there did not appear to be an injury or for which the injury was a psychological one.  The rest of the claims involved a physical injury, usually a severe one.  Eighty percent of the claims involved an injury which caused major disability or death.

The investigating doctors concluded that 63% of the claims involved an injury caused by a medical error.  Very few of the claims which did not involve error received any compensation and, when they did receive compensation, the amount was small.  Strikingly, however, many claims which the doctors concluded were injuries caused by a medical error did not receive any payment.  In fact, there were more cases of a meritorious claim being denied any payment than there were cases of a non-meritorious claim receiving payment.  One in six of the reviewed claims involved an injury caused by medical error for which there was no payment made.

Another striking finding was how much money was spent on lawyers and administrative costs in defending against claims that the physician investigators believed involved serious injury caused by medical error.  Insurance companies and their lawyers are doing well under the current system even if patients injured by medical errors are not.

The investigating physicians concluded that “portraits of a system that is stricken with frivolous litigation are overblown.”  Because of meritorious claims that were heavily defended and went unpaid, the victims of medical errors were left to “shoulder the substantial economic and noneconomic burdens that flow from preventable injury.  Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.”

Additional negative findings were that claims took on average five years to resolve, and some took even longer.  The costs for both claimants and defendants were “exorbitant.”  The fact that 80% of the administrative costs were expended in defending what the investigators considered to be meritorious cases suggested that moves to combat frivolous cases will do little to reduce the system’s overall costs.

One of the largest problems was the meritorious claims that went unpaid because the insurance companies and the doctors fought them so tenaciously.  Not only was it unfair but it was not cost effective.  As the authors noted,  “Substantial savings depend on reforms that improve the system’s efficiency in the handling of reasonable claims for compensation.”

We need a system that fairly and promptly evaluates claims, sends away those who do not have a meritorious claim, and pays those who do.  What we have is a system that protects doctors but at the same time allows them to picture themselves as victims.  It is time for a change.