Are most medical malpractice lawsuits frivolous? Are sky-rocketing health care costs the result of medical malpractice insurance premiums? Two articles in the May issues of two prestigious periodicals offer contrasting views.

Number of Medical Malpractice Lawsuts Without Merit

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A recent article in the May 11th issue of the New England Journal of Medicine has been touted as demonstrating that “About 40% of the medical malpractice claims filed in the U.S. are groundless…”

However, the Abstract for the article reads:

Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant. (emphasis added)

For the study, researchers from Harvard University reviewed a random sample of 1452 closed malpractice claims, resolved between 1984 and 2004, from five liability insurers to determine whether a medical injury had occurred and, if so, whether it was due to medical error. The objectivity of the sampling has been called into question, because the liability insurers are typically the defending entities in the medical malpractice suits.

The study also examined medical records, depositions and court transcripts to determine whether patients experienced injuries and whether those injuries resulted because of medical errors. The researchers concluded that 3% of the claims were filed by patients who did not experience injuries. Among patients who experienced injuries, about two-thirds resulted because of medical errors, and 73% of claims filed by those patients were settled with payment, the study finds. In addition, among the 37% of claims filed by patients who experienced injuries that did not result because of medical errors, 72% were dismissed or resolved without payment, according to the study.

Malpractice Premiums Not Cause of Rising Medical Costs

An interesting related article appears in the May/June edition of Health Affairs (the preeminent journal for health policy,) “Malpractice Premiums and Physicians’ Income: Perceptions of a Crisis Conflict With Empirical Evidence.” The abstract for this article provides:

“The conventional wisdom is that malpractice premiums have steadily risen and now constitute a crisis for medical practice. The best available data suggest otherwise. American Medical Association (AMA) surveys of self-employed physicians from 1970 to 2000 indicate that premiums rose until 1986, then declined until 1996, rose thereafter, but were lower in 2000 than in 1986. Other items represented a much greater share of total practice expenses in 1970 yet increased rapidly until 1996 and moderately thereafter, while spending on premiums fell during 1986-2000.” [The AMA stopped doing these surveys in 2000, but the authors of this article indicate their reasons why no significant differences will be found 2000 to present.]

The real problem for profitability for doctors is that “From 1996 to 2000, net practice income decreased both for physicians nationally and for practice specialties,” primarily a result of managed care. The article concludes, “Calls for protection from liability unite physicians as few other proposals do. Frustrations with contemporary medical practice might focus on malpractice as a source of problems caused by other factors.”

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