A few days ago, I found myself involved in a debate over malpractice suits on The Heath Care Blog. One reader on the thread explained why, in his view, we need some type of tort reform: “What drives physicians to practice defensive medicine is the total lack of objectivity, fairness and consistency both across jurisdictions and even within a jurisdiction as to how medical disputes are decided. Juries of lay people who cannot understand the often conflicting scientific claims in these cases can be easily swayed by emotion and sympathy for injured plaintiffs.
“The inclination to practice defensively is especially prevalent in ER’s when the doctor and the patient often don’t know each other and there is time pressure to determine a diagnosis and send the patient on his or her way,” he added. “I’ve heard from plenty of doctors who work in inner city ER’s that even poor people are not shy about suing when there is a bad outcome if they can find a lawyer to take their case which they often can.”
This comment pretty well sums up the conventional wisdom about medical malpractice cases: Juries are not objective, don’t understand the evidence, and tend to sympathize with the patient. Meanwhile, doctors should be wary of those low-income patients in ERs. Americans are litigious by nature and if patients are not entirely happy with the outcome, they’ll jump at an opportunity to turn misfortune into a payday. Poor people, who need the money, are even more likely to try to “score.”
Those are the fictions.
Here are the facts, according to Drs. John Glasson, and David Orentlicher, writing in JAMA:
“Over the years, our understanding of medical malpractice has been plagued by a number of myths, many of which have been exposed by a remarkable series of reports.” ( Here, they footnote studies published in as number of peer-reviewed medical journals. ) “As a result of these reports, and contrary to popular belief,” they add, we know that “adverse events due to negligent practice rarely result in a lawsuit (only 2% of such events lead to malpractice claims), juries are not systematically biased against physicians (malpractice defendants win more than two thirds of cases, a better record than defendants in other kinds of personal injury cases), and juries decide cases on the basis of the physician’s quality of care rather than the patient’s severity of injury.”
The Difference between Malpractice and Other Personal Injury Cases
We have had this information for years. Glasson and Orentlicher published their piece in the early 1990s. Since then, newer research has only confirmed the critical difference between medical malpractice cases and other personal injury lawsuits. Writing in Emergency Medicine News, Dr. Jonathan Glauser, an ER physician at the Cleveland Clinic, points out that “While plaintiffs win an average of 50 percent of all personal injury cases, recent evidence reveals that Medical malpractice represents a consistent deviation from that average. In 2001 a large study showed plaintiffs winning only 27% of [malpractice] cases, while in 2006, a smaller study found them winning only 21 percent of the time.”
Glauser goes on to report that that “a more exhaustive investigation done in 2007, which looked at independent evaluations of cases by medical and legal experts, found that even when plaintiffs have “strong evidence of negligence,” they win only about half of the time. (Mich Law Rev 2007;105:1454.)
“Generally the assessment [of the evidence] was made by one or more physicians,” Glauser notes, and “the results are surprising but consistent.”) He then points to yet another study of malpractice cases, where the win rate was even lower –just 42 percent– even in cases where physicians assessing the claims concluded that “the quality of care was poor.” (Ann Intern Med 1992;117:780.)
It is difficult to explain the difference between malpractice cases and other personal injury claims. Why are plaintiffs more likely to prevail if they sue an automaker claiming that a defect in the design of the car caused an accident, than if they sue a hospital or a doctor? “Some experts say juries tend not to grasp complexities, which each side tends to introduce into a case, and therefore the juries side with the doctor,” Glauser explains. “In cases like these, the jury gives the physician the benefit of the doubt that his management was consistent with good medical practice when there is an appearance of legitimate conflict. Case complexity favors defendants, or so say some experts.”
I would add that most Americans trust their doctors. They also want to believe that our hospitals are safe. Few are eager to know how many hospital patients are killed or permanently injured by medical mistake. When it comes to the question of whether a large corporation will knowingly sell an unsafe product, consumers are far more cynical.
At Best, Perhaps Five Out of Six Plaintiffs Find Justice
In 2006, the NEJM published a review of malpractice claims sponsored by Harvard’s School of Public Health which has come to be seen as the gold standard for such research. The authors (who included Harvard surgeon Atul Gawande) argued that earlier studies had been flawed in various ways. Some “focused only on a small numbers of claims, a single hospital, insurer, specialty, or type of injury; others used very limited information in the determination of merit, or relied on the insurer’s view of the defensibility of the claim as a proxy for merit rather than on independent expert judgments.”
This study was designed to avoid those limitations. Independent physicians reviewed 1452 closed claims involving five malpractice insurance companies in four regions of the United States. The suits covered approximately 33,000 physicians, 61 acute care hospitals (35 of them academic and 26 nonacademic), and 428 outpatient facilities. In each case, physician-reviewers were examining cases in their own specialty.\
Reviewers followed the Institute of Medicine’s definition of error: “the failure of a planned action to be completed as intended (i.e. error of execution) or the use of a wrong plan to achieve an aim (i.e., error of planning).”
The results of this larger, more carefully controlled study confirmed that juries seem to favor the defendant in a malpractice trial. When physician-reviewers were asked about the fairness of the verdicts, and whether medical error caused the poor outcomes, they concluded that “one in six claims involved errors but received no payment.” As a result, the authors point out: plaintiffs were forced to “shoulder the substantial economic and noneconomic burdens that flow from preventable injury.”
“One in six” (or 16 percent) is better than 50 percent. But it is worth noting that the physician-reviewers deemed 23 percent of the cases “too close to call.” After considering all of the details, they couldn’t decide whether a bad outcome was due to negligence. (Glauser also points out that when independent doctors evaluate the merits of malpractice suits, they disagree with each other about one-third of the time.)
Those “too close to call” claims were (rightly) excluded from the final tally. But assuming, for the sake of argument, that in one-third of those ambiguous cases, a medical error did cause injury, the percent of worthy, but unrequited claims might run as high as 24 percent. (Obviously “one-third” is an arbitrary shot-in-the-dark. We just don’t know. )
How Often Do Patients Win Awards When No Error Was Made?
When it comes to the fairness of financial awards, the physician-reviewers found “Plaintiffs were paid in cases where the reviewers found no error only 10 percent of the time. Plaintiffs were NOT PAID in cases where the reviewer found that there Was error 16 percent of the time. Thus, nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries. ”
It may be heartening to read that in cases where the reviewers found evidence of errors, plaintiffs were paid 84% of the time. But the fact plaintiffs won damages when the reviewers saw no evidence of malpractice in 10% of all case is extremely disturbing. Imagine the damage not only to a doctor’s reputation but to his psychic health when an award is made, even though he or she did not make a mistake. Just being sued is a hellish experience; being found guilty when you did no wrong is an injustice that could make a person want to give up the practice of medicine. (This is one reason why I would like to see our malpractice system focus on “How can we prevent this from happening again?” rather than “Who is to blame?”)
How could so many patients win awards in cases where there appears to have been no malpractice? Juries and even judges are human. A charismatic trial attorney may sway the jury; an unattractive, arrogant, or unrepentant defendant may prejudice his own case. More importantly, medicine is shot through with uncertainty.
Note that when the physicians who reviewed the cases in the Harvard study were asked to rate their judgments using a 6-point confidence scale, they reported that they had a “high level of confidence” in their assessment of the case only 44 percent of the cases. This signals that, in some cases where they found no error, they may have been wrong. Of course, when they found negligence, they also could have been mistaken. Though in cases where they genuinely were not sure, physician- reviewers might be more likely to see the case through the doctor’s eyes and err in his favor.
Finally, one might wonder, how could a case in which no mistake was made ever get to court? Here the problem is that when a doctor or hospital is sued, they usually stonewall the plaintiff and his or her attorneys. The defendant’s lawyers instruct them not to talk to the patient or her family. Nurses or others who witnessed the event are told to clam up. Often, the only way a patient or her relatives can find out “what happened” is by suing.
The authors of the Harvard School of Public Health Study explain that when they looked at the claims where reviewers found no error, these suits did not fit the popular profile of “frivolous” suits bought by “opportunistic trial lawyers pursuing questionable lawsuits . . . Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired.”
Preparing for trial involves a process which lawyers call “discovery.” Typically, the plaintiff asks the defendant to open his files and computers to produce documents which may show what actually happened. If the plaintiff asks for 100 documents, the attorney for the defendant sends him 1000, maybe 2000. (This is what litigators call “burying the other guy in paper.”) Discovery can drag on for a year or two.
Depositions also yield information. But if a case is complex and involves many actors, it could be at least two years before the plaintiff and his attorney begin to figure out what probably happened. (This goes a long way toward explaining why cases that involved no medical error wind up in the system.)
At that point, both parties have invested an enormous amount of time and money. Acrimony has built. One or both may refuse to settle. In cases where the doctor or hospital are quite certain that they are innocent, they are more likely to insist on going on to court. Insurers may press for a settlement, but reviewers have found that when the evidence against the health care provider is weak, the case is more likely to go to trial.
“Most of These Very Poor People Don’t Make Waves.”
Who brings malpractice claims? In the Harvard study of 1452 claims, sixty percent of the plaintiffs were female. The median age of the plaintiffs was 38 years; 19 percent were newborns, and just 12 percent were 65 years of age or older. Obstetrician-gynecologists were the most frequently sued (19 percent), followed by general surgeons (17 percent), and primary care physicians (16 percent).
As for the idea that poor patients are more likely to sue, a 2009 article published on ACP Internist , a blog sponsored by the American College of Physicians, notes that while “Many doctors think it is ‘poor patients on welfare’” who sue, “evidence shows that low income patients on Medicaid are actually less likely to sue than others.”
The research is consistent. Another study, published in JAMA looked at lawsuits at 51 hospitals in New York State: “Poor and uninsured patients are significantly less likely to sue for malpractice, even after controlling for the presence of medical injury,” the authors wrote. “Fear of malpractice risk should not be a significant factor in the decision to serve the poor. Tort reforms that would protect physicians who serve the medically indigent from malpractice suits may not be warranted.”
I cannot help but be reminded of what Dr. Liz Dreesen, a physician who had practiced in a small mill town in North Carolina, told me when I was writing Money-Driven Medicine: “Most of these very poor people don’t make waves.” The indigent are not demanding. In the game of life, they are accustomed to losing, and as a result, they are not as likely to be as shocked or indignant as you or I might be if we were injured because someone forgot to wash his hands.
In Part 2 of this post, I will write about possible solutions to what Atul Gawande has called “the malpractice mess”: caps on awards (including a bill that is now in the House) and “health courts,” where an expert judge makes the decisions. I also will discuss the uncertainties of medicine which can make it so difficult, even for a physician, let alone a judge, to discern whether medical error caused a poor outcome. Finally, I’ll focus on the high cost of lawsuits, and explain why “apology and disclosure” makes far more sense than the bitter and costly adversarial system that we now use to try to sort out “what happened.”