1 CENTER FOR JUSTICE & DEMOCRACY 185 WEST BROADWAY NEW YORK, NY TEL: THE TRUTH ABOUT MEDICAL MALPRACTICE LITIGATION Trt liability fr medical malpractice is designed t serve several functins: t cmpensate injured patients fr their harm, t encurage dctrs t take apprpriate safety precautins and avid undue risk in treating their patients, and t prvide a frum in which negligent physicians can be held publicly accuntable. The litigatin prcess can als prvide a means fr patients and their families t gain mre infrmatin abut the causes and circumstances f medical injuries. 1 PREVENTABLE MEDICAL ERRORS ARE WIDESPREAD BUT FEW INJURED PATIENTS FILE LAWSUITS. Each year, hundreds f thusands f Americans are killed r injured by avidable medical errrs. Accrding t a Nvember 2010 study by the Office f Inspectr General f the U.S. Department f Health and Human Services, abut 1 in 7 Medicare patients in hspitals experience a serius medical errr, 44 percent f which are preventable. 2 The Institute f Medicine s seminal 1999 study, T Err is Human, fund that between 44,000 and 98,000 patients are killed in hspitals each year due t preventable adverse events caused by treatment itself and nt an underlying cnditin. 3 The IOM used stringent criteria in chsing which adverse events t cnsider. The reprt als ntes, Sme maintain these extraplatins likely underestimate the ccurrence f preventable adverse events because these studies: 1) cnsidered nly thse patients whse injuries resulted in a specified level f harm; 2) impsed a high threshld t determine whether an adverse event was preventable r negligent (cncurrence f tw reviewers); and 3) included nly errrs that are dcumented in patient recrds. In ther wrds, the authrs f the IOM study made special care t ensure that nly incidents that were preventable r negligent were examined. Despite the amunt f preventable medical negligence natinwide, very few injured patients file suit. This was the finding f tw recent Natinal Center fr State Curts (NCSC) analyses f medical malpractice litigatin in state curts. 4 As NCSC researchers put it in their 2010 study, rarely des a medical malpractice caselad exceed a few hundred cases in any ne state in ne year. 5 MEDICAL MALPRACTICE LAWSUITS ARE RARE AND DECLINING IN NUMBER. Accrding t an April 2011 NCSC reprt, despite the widespread prevalence f medical negligence, 6 in 2008 medical malpractice case filings represented well under 2 percent f all incming civil cases, and less than 8 percent f incming trt cases 7 in the general jurisdictin curts f 12 states reprting.
2 NCSC data als shw that medical malpractice claims are becming less frequent. In an Octber 2011 study, researchers fund that frm 2000 t 2009, med mal filings fell by 18 percent in the general jurisdictin curts f seven states reprting. 8 In five f thse states, filings fell by between 18 and 42 percent. 9 These findings are cnsistent with NCSC s April 2011 med mal reprt which cncluded that [c]ntrary t the claims f sme trt refrm advcates, medical malpractice caselads have been decreasing ver time. 10 MEDICAL MALPRACTICE CASES ARE RARELY RESOLVED THROUGH TRIAL. In 2005, the mst recent year studied by the U.S. Department f Justice (DOJ), nly 7.8 percent f medical malpractice cases were dispsed f by bench r jury trial in 49 jurisdictins reprting. 11 Between 1996 and 2005, the number f medical malpractice trials cncluded in state curts in the natin s 75 mst ppulus cunties remained lw and fairly stable, increasing by nly 1.5 percent ver the ten-year perid. 12 In 2005, medical malpractice cases accunted fr nly 9.1 percent f all civil cases dispsed f by trial in state curts. 13 After examining lng-term data, DOJ fund that the number f med mal cases as a percentage f all civil trials in the natin s 75 mst ppulus cunties remained lw and relatively steady ver a 14-year perid, with med mal cases cnstituting 9.7 percent f all civil trials in 2001 and 11.3 percent f all civil trials in DOJ data shw that in 2005 medical malpractice cases accunted fr 14.9 percent f trt cases dispsed f by trial in state curts natinwide. 15 Lng-term data frm the natin s 75 mst ppulus cunties shw that the number f medical malpractice cases as a percentage f all trt trials remained lw and fairly stable frm 1996 thrugh 2005, increasing by nly 2.8 percent between 2001 and THE VAST MAJORITY OF TRUE MEDICAL MALPRACTICE CASES SETTLE. In a 2006 clsed claims study, the Harvard Schl f Public Health fund that nly 15 percent f claims were decided by trial verdict. 17 Other research shws that 90 percent f cases are settled withut jury trial, with sme estimates indicating that the figure is as high as 97 percent. 18 As Duke Law Prfessr Neil Vidmar, wh has extensively studied medical malpractice litigatin, testified befre the U.S. Senate, Research n why insurers actually settle cases indicates that the driving frce in mst instances is whether the insurance cmpany and their lawyers cnclude, n the basis f their wn internal review, that the medical prvider was negligent..an earlier study by Rsenblatt and Hurst examined 54 bstetric malpractice claims fr negligence. Fr cases in which settlement payments were made there was general cnsensus amng insurance cmpany staff, medical experts and defense attrneys that sme lapse in the standard f care had ccurred. N payments were made in the cases in which these varius reviewers decided there was n lapse in the standard f care. 19 Vidmar added, In interviews with liability insurers that I undertk in Nrth Carlina and ther states, the mst cnsistent theme frm them was: We d nt settle frivlus cases! The insurers indicated that there are minr exceptins, but their plicy n frivlus cases was based n the 2
3 belief that if they ever begin t settle cases just t make them g away, their credibility will be destryed and this will encurage mre litigatin. 20 Vidmar further testified, Withut questin the threat f a jury trial is what frces parties t settle cases. The presence f the jury as an ultimate arbiter prvides the incentive t settle but the effects are mre subtle than just negtiating arund a figure. The threat causes defense lawyers and the liability insurers t fcus n the acts that led t the claims f negligence. 21 JURIES ARE ABLE TO HANDLE MEDICAL MALPRACTICE CASES. Empirical studies cnsistently shw juries t be capable, effective and fair decisin-makers in medical malpractice cases. 22 Fr example, University f Missuri-Clumbia Law Prfessr Philip G. Peters, Jr. analyzed three decades f empirical research n jury decisin-making and reached the fllwing fur cnclusins: First, negligence matters. Weak cases rarely win, clse cases d better, and cases with strng evidence f medical negligence fare best. Secnd, the agreement rate between juries and experts is very high in the class f cases that mst wrries critics f malpractice litigatin, that is, cases with weak evidence f negligence. Juries agree with expert reviewers in eighty t ninety percent f these cases. That is a better agreement rate than physicians typically have with each ther. Third, the agreement rate is much lwer in cases with strng evidence f negligence. Dctrs cnsistently win abut fifty percent f the cases that experts believe the plaintiffs shuld win. Furth, the cnsistently lw success rate f malpractice plaintiffs in cases that expert reviewers feel they shuld win strngly suggests the presence f ne r mre factrs that systematically favr medical defendants in the curtrm, such as better litigatin teams r prnunced jury reluctance t find dctrs liable. Frm the perspective f defendants at least, jury perfrmance is remarkably gd. 23 JURIES ARE NOT ANTI-PHYSICIAN; IN FACT, THE OPPOSITE IS TRUE. Crnell University Law Prfessr Valerie P. Hans and Duke University Law Prfessr Neil Vidmar, leading experts in the field f jury research, explred the claims f dctrs abut unfair treatment by juries but the empirical evidence des nt back them up. The ntin f the pr-plaintiff jury is cntradicted by many studies that shw bth actual and mck jurrs subject plaintiffs evidence t strict scrutiny. 24 Interviews with Nrth Carlina jurrs wh decided medical malpractice cases led Prfessr Vidmar t cnclude that many jurrs initially viewed the plaintiffs claims with great skepticism. Their attitudes were expressed in tw main themes. First, they said that t many peple want t get smething fr nthing, a skeptical attitude abut claiming. Secnd, they expressed the belief that mst dctrs try t d a gd jb and shuld nt be blamed fr a simple human misjudgment. 25 Vidmar added, Indeed, these attitudes were even expressed in sme f the cases in which jurrs decided fr the plaintiff. One jury that gave a multimillin-dllar award fr a baby with severe brain injuries was very cncerned abut the pssible adverse effect n the dctr s medical practice. This des nt mean that in every such case jurrs held these views. Smetimes, evidence f the dctr s seemingly careless behavir caused jurrs t be angry abut what happened. Hwever, even in these latter cases, the interviews indicated that the jurrs had initially apprached the case with pen minds. 26 3
4 IT IS DIFFICULT FOR PATIENTS TO WIN MEDICAL MALPRACTICE CASES. In 2005, the latest year studied by DOJ, the plaintiff win rate fr medical malpractice was 23 percent. 27 Juries decided against medical malpractice plaintiffs mre than three-quarters f the time in Injured patients were mre successful befre judges, winning 50 percent f the time. 29 Lng-term data frm state trials in the natin s 75 mst ppulus cunties shw statistically significant decreases in win rates amng medical malpractice plaintiffs. Mre specifically, the percentage f successful plaintiffs fell by 17 percent frm 1996 t 2005 and by 27.7 percent frm 2001 t MEDICAL MALPRACTICE VICTIMS WHO PREVAIL AT TRIAL HAVE SUFFERED SEVERE INJURIES. Accrding t NCSC, in 2005, death was by far the mst frequent type f injury amng successful medical malpractice plaintiffs, accunting fr 22 percent f med mal victims wh prevailed at trial. 31 [I]n the paralysis/amputatin categry, 100 percent f medical malpractice cases in which the plaintiff received an award invlved paralysis caused by injury t the spine r brain In the brain/head injury categry, all injuries alleged by successful medical malpractice claimants were permanent Fr burns, laceratins, skin infectins, and ther skin injuries, all winning medical malpractice patients suffered permanent injuries. 32 MEDICAL MALPRACTICE VERDICTS ARE FAR SMALLER THAN COMMONLY BELIEVED. In 2005, the latest year studied by DOJ, the median award fr successful medical malpractice plaintiffs in state curt was $400, The median med mal award in jury-decided cases was als $400, In cntrast, state judges handed dwn a significantly higher median damage award t medical malpractice victims, $631, It is imprtant t nte that these median amunts d nt accunt fr pst-trial activity (such as award mdificatins) and appeals. 36 PREVAILING MEDICAL MALPRACTICE PLAINTIFFS RARELY RECEIVE PUNITIVE DAMAGE VERDICTS. In 2005, the mst recent year studied by DOJ, punitive damages were awarded in nly 1 percent f medical malpractice cases where victims established liability at trial. 37 Lng-term data frm the natin s 75 mst ppulus cunties shw that the percentage f successful medical malpractice plaintiffs receiving punitive damages is cnsistently lw 1.1 percent in 1996, 4.9 percent in 2001 and 2.6 percent in THERE ARE LEGITIMATE REASONS WHY SUCCESSFUL MEDICAL MALPRACTICE PLAINTIFFS RECEIVE LARGER AWARDS THAN OTHER PERSONAL INJURY PLAINTIFFS. Accrding t DOJ, in 2005, the median award fr successful medical malpractice plaintiffs was $400,000, cmpared t $19,840 fr ther successful persnal injury plaintiffs. 39 In analyzing the different medians, NCSC explained that [t]he larger damage awards in medical malpractice cases d nt necessarily imply that juries are acting irratinally r being verly generus t medical malpractice plaintiffs. First, damage awards in medical malpractice cases are generally prprtinate t the severity f the injury. Secnd, the high cst f pursuing a medical malpractice claim means that nly thse cases in which the plaintiff s injury is severe and the ptential damages very large are likely t make it t trial. Because ther types f trt cases are 4
5 less cstly t litigate, lwer-value cases f these types are mre likely t be filed and taken t trial than are lw-value medical malpractice cases. 40 MEDICAL MALPRACTICE AWARDS AND PAYMENTS REFLECT THE SEVERITY OF THE INJURY. After lking at the mst recent DOJ data available, NCSC researchers fund that [t]he mst serius injuries, such as paralysis and cancer, received the largest awards. Cnsistent with ther research, in medical malpractice cases death tended t be cmpensated smewhat less highly than sme ther serius injuries such as paralysis, in part because these injuries ften require cstly lifelng care. Less serius injuries, such as fractures and dental injuries, received smaller awards. 41 As Prfessr Vidmar tld Cngress in June 2006, [T]he magnitude f jury awards in medical malpractice trt cases psitively crrelated with the severity f the plaintiffs injuries, except that injuries resulting in death tended t result in awards substantially lwer than injuries resulting in severe permanent injury, such as quadriplegia. I and tw clleagues cnducted a study f malpractice verdicts in New Yrk, Flrida, and Califrnia. We als fund that jury awards f prevailing plaintiffs in malpractice cases were crrelated with the severity f the injury. 42 Public Citizen s mst recent analysis f Natinal Practitiner Data Bank (NPDB) data shws that the verwhelming majrity f medical malpractice payments cmpensate fr death, catastrphic harms r serius permanent injuries. 43 Of the 10,195 medical malpractice payments in 2010, 44 nearly tw-thirds (64.5 percent) cmpensated fr negligence that resulted in a significant permanent injury, majr permanent injury, quadriplegia, brain damage, the need fr lifelng care, r death. Mre imprtant, the dllar value f payments fr these extremely serius utcmes accunted fr an even higher prprtin mre than fur-fifths (82.1 percent) f the ttal value f malpractice payments last year. Nearly half the mney paid (46.6 percent) cmpensated victims and victims survivrs fr negligence resulting in death, quadriplegia, brain damage r injuries requiring lifelng care. 45 VICTIMS OF MEDICAL ERRORS ARE RARELY COMPENSATED. Accrding t Public Citizen s analysis f 2010 NPDB data, The number f medical malpractice payments made n behalf f physicians fell fr the seventh cnsecutive year in 2010, plummeting t the lwest ttal in the histry f the NPDB, which has tracked medical malpractice payments since In abslute terms, [p]ayments in 2010 were 19.6 percent fewer than in 1991, the earliest full year fr which the NPDB cllected data. Cmpared t the U.S. ppulatin, the number f payments was 37.5 percent lwer in 2010 than in Public Citizen s NPDB reprt als fund that there were 3,597 medical malpractice payments fr deaths due t negligence in This means that even if ne uses the lw end f the IOM estimate 44,000 deaths per year abut 12 times as many peple were likely killed in hspitals in 2010 because f avidable errrs as the number f malpractice payments t survivrs. 49 Using a 2009 Hearst Newspapers estimate (i.e., 200,000 deaths frm medical mistakes per year), just ne in 55 deaths was cmpensated. 50 In ther wrds, between 91 and 98 percent f deaths frm medical negligence did nt result in any liability payment. In additin, Public Citizen s analysis f NPDB data revealed that a ttal f 10,195 malpractice payments were made n behalf f dctrs in Thus, even by IOM s lw-end estimate f 44,000 deaths a year, abut fur times as many peple were killed by avidable errrs as received a medical malpractice payment fr any adverse utcme, including death. 52 And based n the 5
6 Hearst estimate f 200,000 deaths per year, abut 19 peple were killed fr every payment cmpensating any type f injury. 53 Accrding t DOJ s mst recent reprt n medical malpractice insurance claims in seven states frm 2000 thrugh 2004, mst claims were clsed withut any cmpensatin prvided t thse claiming a medical injury. 54 MEDICAL MALPRACTICE VERDICT PAYMENTS ARE FAR SMALLER THAN COMMONLY BELIEVED. In its 2011 NPDB study, Public Citizen fund that [t]he cumulative value f malpractice payments in 2010 was the lwest in the histry f the NPDB if adjusted fr inflatin by the cnsumer price index (CPI) r medical services index. In actual dllars, payments in 2010 were the lwest since As Crnell Law Prfessr Valerie P. Hans and Duke Law Prfessr Neil Vidmar explain in American Juries: The Verdict, The fact that the jury verdict is nt the end f litigatin is ften verlked in discussins f the rle f the jury. This is especially true f medical malpractice trials. 56 Accrding t the authrs, Research cnsistently indicates that utlier verdicts seldm withstand pstverdict prceedings. The judge may reduce the award by remittitur (the legal term fr a reductin), r the case may be appealed t a higher curt at which time the award may be reduced. Perhaps mst cmmn f all, the plaintiff and the defendant negtiate a psttrial settlement that is less than the jury verdict. Plaintiffs are willing t negtiate lesser amunts, the researchers added, because they need the mney immediately and cannt wait fr the years it will take t get the mney if the case is appealed. Als, there is a risk that an appeals curt will reduce the award r even verturn the verdict. 57 In the end, the plaintiff negtiates a settlement arund the defendant s insurance cverage. 58 Fr example, [s]me f the largest medical malpractice awards in New Yrk that made natinal headlines ultimately resulted in settlements between 5 and 10 percent f the riginal jury verdict actually being paid. 59 Similarly, Vidmar s Illinis study fund that settlements in his sample f large jury awards averaged nly 43 percent f the riginal verdicts. 60 Research by University f Illinis Law Prfessr David A. Hyman and clleagues frm the University f Texas, New Yrk University Law Schl and Gergetwn University Law Center shws that mst med mal jury awards receive pst-verdict haircuts. 61 Accrding t the Texas data: Seventy-five percent f plaintiffs received a payut less than the adjusted verdict (jury verdict plus pre-judgment and pst-judgment interest), 20 percent received the adjusted verdict (within ± 2 percent), and 5 percent received mre than the adjusted verdict. 62 Overall, plaintiffs received a mean (median) per-case haircut f 29 percent (19 percent), and an aggregate haircut f 56 percent, relative t the adjusted verdict. 63 The larger the verdict, the mre likely and larger the haircut. Fr cases with a psitive adjusted verdict under $100,000, 47 percent f plaintiffs received a haircut, with a mean (median) per-case haircut f 8 percent (2 percent). Fr cases with an adjusted verdict larger than $2.5 millin, 98 percent f plaintiffs received a haircut with a mean (median) per-case haircut f 56 percent (61 percent). 64 Insurance plicy limits are the mst imprtant factr explaining haircuts. 65 6
7 Mst cases settle, presumably in the shadw f the utcme if the case were t be tried. That utcme is nt the jury award, but the actual pst-verdict payut. The parties surely bargain in the shadw f the jury, but in mst cases, the terms f the bargain are shaped by the shadw f cverage. 66 Because defendants rarely pay what juries award, jury verdicts alne d nt prvide a sufficient basis fr claims abut the perfrmance f the trt system. 67 FAR FROM BEING BROKEN, EXPERTS SAY THAT THE CURRENT MEDICAL MALPRACTICE SYSTEM WORKS WELL. In an Octber 2011 study, Califrnia State University, Nrthridge Ecnmics Prfessr and Cat Institute Adjunct Schlar Shirley Svrny analyzed existing empirical data and fund that the medical malpractice system wrks just as it shuld. As Svrny explained, The medical malpractice system generally awards damages t victims f negligence and fails t reward meritless claims. Plaintiffs attrneys, paid n a cntingency basis, filter ut weak cases. Patients wh file valid claims are likely t cllect, generally thrugh ut-fcurt settlements. 68 The fact that settlement is cmmn suggests curts are prviding gd signals as t when plaintiffs will prevail. Under these cnditins, insurance cmpanies assess the validity f claims and settle valid claims rather than g t curt. 69 Critics f the system pint t the fact that many initial claims d nt invlve negligence. This can be explained by patients and their attrneys seeking t gather infrmatin abut the level f negligence assciated with an injury. Once discvery shws a small likelihd f success, many plaintiffs drp their claims. 70 Critics f the medical malpractice system pint t its high administrative csts. Yet, as ecnmist Patricia Danzn bserves, the bulk f administrative csts are limited t the small fractin f cases that g t curt. Meanwhile, the deterrent effect influences all medical practice. 71 In its 2006 clsed claims study, the Harvard Schl f Public Health reprted that legitimate claims are being paid, nn-legitimate claims are generally nt being paid and prtraits f a malpractice system that is stricken with frivlus litigatin are verblwn. 72 Amng the researchers mre significant findings: Sixty-three percent f the injuries were judged t be the result f errr and mst f thse claims received cmpensatin; n the ther hand, mst individuals whse claims did nt invlve errrs r injuries received nthing. 73 Eighty percent f claims invlved injuries that caused significant r majr disability r death. 74 The prfile f nn-errr claims we bserved des nt square with the ntin f pprtunistic trial lawyers pursuing questinable lawsuits in circumstances in which their chances f winning are reasnable and prspective returns in the event f a win are high. Rather, ur findings underscre hw difficult it may be fr plaintiffs and their attrneys t discern what 7
8 has happened befre the initiatin f a claim and the acquisitin f knwledge that cmes frm the investigatins, cnsultatin with experts, and sharing f infrmatin that litigatin triggers. 75 [D]isputing and paying fr errrs accunt fr the lin s share f malpractice csts. 76 Previus research has established that the great majrity f patients wh sustain a medical injury as a result f negligence d nt sue. [F]ailure t pay claims invlving errr adds t a larger phenmenn f underpayment generated by the vast number f negligent injuries that never surface as claims. 77 LITIGATION IMPROVES PATIENT SAFETY. David A. Hyman, Prfessr f Law and Medicine at the University f Illinis Cllege f Law, and Charles Silver f the University f Texas at Austin Schl f Law, have researched and written extensively abut medical malpractice. 78 They cnfirm, The field f surgical anesthesia, where anesthesilgists adpted practice guidelines t reduce deaths, injuries, claims and lawsuits, is a strng case in pint. [T]w majr factrs frced their hand: malpractice claims and negative publicity. Anesthesilgists wrked hard t prtect patients because f malpractice expsure, nt in spite f it. 79 As Hyman and Silver explain, the reasn why trt liability prmtes patient safety is bvius: Prviders are ratinal. When injuring patients becmes mre expensive than nt injuring them, prviders will stp injuring patients. 80 In a breakthrugh article by Gerge J. Annas, J.D., M.P.H., the New England Jurnal f Medicine cnfirmed that litigatin against hspitals imprves the quality f care fr patients. The authr wrte, In the absence f a cmprehensive scial insurance system, the patient s right t safety can be enfrced nly by a legal claim against the hspital. [M]re liability suits against hspitals may be necessary t mtivate hspital bards t take patient safety mre seriusly. Anesthesilgists were mtivated by litigatin t imprve patient safety. As a result, this prfessin implemented 25-years-ag a prgram t make anesthesia safer fr patients and as a result, the risk f death frm anesthesia drpped frm 1 in 5000 t abut 1 in 250, Numerus ther medical practices have been made safer nly after the families f sick and injured patients filed lawsuits against thse respnsible. In additin t anesthesia prcedures, these include catheter placements, drug prescriptins, hspital staffing levels, infectin cntrl, nursing hme care and trauma care. 82 As a result f such lawsuits, the lives f cuntless ther patients have been saved. The Harvard Medical Practice Study als acknwledged, [T]he litigatin system seems t prtect many patients frm being injured in the first place. And since preventin befre the fact is generally preferable t cmpensatin after the fact, the apparent injury preventin effect must be an imprtant factr in the debate abut the future f the malpractice litigatin system. 83 FEAR OF LITIGATION IS NOT THE MAIN REASON DOCTORS FAIL TO REPORT ERRORS. A January 2012 reprt frm the U.S. Department f Health and Human Services (HHS) fund that massive errr underreprting at hspitals is caused by widespread emplyee failure t recgnize patient harm. 84 Accrding t the HHS Inspectr General, [T]he prblem is that hspital emplyees d nt recgnize what cnstitutes patient harm r d nt realize that particular events harmed patients and shuld be reprted. In sme cases, he said, emplyees 8
9 assumed smene else wuld reprt the episde, r they thught it was s cmmn that it did nt need t be reprted, r suspected that the events were islated incidents unlikely t recur. 85 Accrding t a 2006 study by Dr. Thmas Gallagher, a University f Washingtn internalmedicine physician and c-authr f tw studies published in the Archives f Internal Medicine, Cmparisns f hw Canadian and U.S. dctrs disclse mistakes pint t a culture f medicine, nt lawyers, fr their behavir. 86 In Canada, there are n juries, nn-ecnmic awards are severely capped and if patients lse their lawsuits, they have t pay the dctrs legal bills yet dctrs are just as reluctant t fess up t mistakes. 87 Mrever, dctrs thughts n hw likely they were t be sued didn t affect their decisins t disclse errrs. 88 The authrs believed the main culprit is a culture f medicine, which starts in medical schl and instills a culture f perfectinism that desn t train dctrs t talk abut mistakes. 89 Research by Gerge J. Annas, J.D., M.P.H. fund that nly ne quarter f dctrs disclsed errrs t their patients, 90 but the result was nt that much different in New Zealand, a cuntry that has had n-fault malpractice insurance 91 (i.e., n litigatin against dctrs) fr decades. In ther wrds, [t]here are many reasns why physicians d nt reprt errrs, including a general reluctance t cmmunicate with patients and a fear f disciplinary actin r a lss f psitin r privileges. 92 THE BEST WAY TO REDUCE MALPRACTICE LITIGATION IS TO REDUCE THE AMOUNT OF MALPRACTICE. As the Rand Institute fr Civil Justice fund in its 2010 study f Califrnia malpractice: Our results shwed a highly significant crrelatin between the frequency f adverse events and malpractice claims: On average, a cunty that shws a decrease f 10 adverse events in a given year wuld als see a decrease f 3.7 malpractice claims. Likewise, a cunty that shws an increase f 10 adverse events in a given year wuld als see, n average, an increase f 3.7 malpractice claims. Accrding t the statistical analysis, nearly three-furths f the within-cunty variatin in annual malpractice claims culd be accunted fr by the changes in patient safety utcmes. 93 We als fund that the crrelatin held true when we cnducted similar analyses fr medical specialties specifically, surgens, nnsurgical physicians, and bstetrician/gyneclgists (OB-GYNs). Nearly tw-thirds f the variatin in malpractice claiming against surgens and nnsurgens can be explained by changes in safety. The assciatin is weaker fr OB-GYNs, but still significant. 94 These findings are cnsistent with the basic hypthesis that iatrgenic harms are a precursr t malpractice claims, such that mdifying the frequency f medical injuries has an impact n the vlume f litigatin that spills ut f them. Althugh this is an intuitive relatinship, it is nt ne that has been well validated previusly. It suggests that safety interventins that imprve patient utcmes have the ptential t reduce malpractice claiming, and in turn, malpractice pressure n prviders. 95 [N]ew safety interventins ptentially can have psitive effects n the vlume f malpractice litigatin a desirable result t seek ut, even beynd the immediate impact f medical injuries avided. 96 Presumably, the ne thing that all parties t the debate can agree n is that reducing malpractice activity by reducing the number f iatrgenic injuries is a gd idea. Arguments 9
10 abut the merits f statutry trt interventin will surely cntinue in the future, but t the extent that imprved safety perfrmance can be shwn t have a demnstrable impact n malpractice claims, that ffers anther fcal pint fr plicymakers in seeking t address the malpractice crisis. Based n the results f the current study, we wuld suggest that that fcal pint may be mre immediately relevant than has previusly been recgnized. 97 Updated January NOTES 1 Rbert C. LaFuntain and Cynthia G. Lee, Medical Malpractice Litigatin in State Curts (April 2011) at 1, fund at 2 U.S. Department f Health and Human Services, Office f the Inspectr General, Adverse Events in Hspitals: Natinal Incidence Amng Medicare Beneficiaries (Nvember 2010), pp. i-ii, fund at 3 T Err Is Human, Building a Safer Health System, Institute f Medicine, Rbert C. LaFuntain and Cynthia G. Lee, Medical Malpractice Litigatin in State Curts (April 2011) at 2, 7, fund at Richard LaFuntain et al., Examining the Wrk f State Curts: An Analysis f 2008 State Curt Caselads (Natinal Center fr State Curts 2010) at 26, fund at 5 Richard LaFuntain et al., Examining the Wrk f State Curts: An Analysis f 2008 State Curt Caselads (Natinal Center fr State Curts 2010) at 26, fund at 6 Id. at 2. 7 Ibid. 8 Natinal Center fr State Curts, Trt Refrms Can Shape Medical Malpractice Caselad Trends (viewed December 15, 2011), fund at 9 Ibid. 10 Rbert C. LaFuntain and Cynthia G. Lee, Medical Malpractice Litigatin in State Curts (April 2011) at 3, fund at 11 U.S. Department f Justice, Bureau f Justice Statistics, Trt Bench and Jury Trials in State Curts, 2005, NCJ (Nvember 2009) at 14 (Table 13), fund at 12 Id. at 12 (Table 12). 13 U.S. Department f Justice, Bureau f Justice Statistics, Civil Bench and Jury Trials in State Curts, 2005, NCJ (Octber 2008) (revised April 9, 2009) at 2 (Table 1), fund at 14 Id. at 8, 9 (Table 10). 15 U.S. Department f Justice, Bureau f Justice Statistics, Trt Bench and Jury Trials in State Curts, 2005, NCJ (Nvember 2009) at 2 (Table 1), fund at 16 Id. at 12 (Table 12). 17 David M. Studdert et al., Claims, Errrs, and Cmpensatin Payments in Medical Malpractice Litigatin, 354 N Engl J Med 2024, 2026 (2006), fund at 18 Testimny f Neil Vidmar, Russell M. Rbinsn II Prfessr f Law, Duke Law Schl, befre the U.S. Senate Cmmittee n Health, Educatin, Labr and Pensins, Hearing n Medical Liability: New Ideas fr Making the System Wrk Better fr Patients, June 22, 2006 at 17 (citatins mitted), fund at help.senate.gv/im/media/dc/vidmar.pdf. 19 Id. at 17-18, Id. at Ibid. 22 Fr an extensive list f studies demnstrating the cmpetence f juries, see, e.g., Testimny f Neil Vidmar, Russell M. Rbinsn II Prfessr f Law, Duke Law Schl, befre the U.S. Senate Cmmittee n Health, Educatin, Labr and Pensins, Hearing n Medical Liability: New Ideas fr Making the System Wrk Better fr Patients, June 22, 2006 at 10, fund at help.senate.gv/im/media/dc/vidmar.pdf. See als, Valerie P. Hans and 10
11 Neil Vidmar, The Verdict n Juries, 91 Judicature 226, 227 (March-April 2008), fund at Marc Galanter, Real Wrld Trts: An Antidte t Anecdte, 55 Md. L. Rev. 1093, 1109, n. 45 (1996), citing Michael J. Saks, Small-Grup Decisin Making and Cmplex Infrmatin Tasks (1981); Rbert MacCun, Inside the Black Bx: What Empirical Research Tells Us Abut Decisinmaking by Civil Juries, in Verdict: Assessing the Civil Jury System 137 (Brkings Institutin, Rbert E. Litan ed., 1993); Christy A. Visher, Jurr Decisin Making: The Imprtance f Evidence, 11 Law & Hum. Behav. 1 (1987); Richard O. Lempert, Civil Juries and Cmplex Cases: Let s Nt Rush t Judgment, 80 Mich. L. Rev. 68 (1981). 23 Philip G. Peters, Jr., Dctrs & Juries, 105 U. Mich. L. Rev. 1453, 1454 (May 2007), fund at 24 Valerie P. Hans and Neil Vidmar, The Verdict n Juries, 91 Judicature 226, 227 (March-April 2008), fund at 25 Valerie P. Hans and Neil Vidmar, American Juries: The Verdict. Amherst, NY: Prmetheus Bks (2007) at Ibid. 27 Rbert C. LaFuntain and Cynthia G. Lee, Medical Malpractice Litigatin in State Curts (April 2011) at 4, fund at 28 Ibid. 29 U.S. Department f Justice, Bureau f Justice Statistics, Trt Bench and Jury Trials in State Curts, 2005, NCJ (Nvember 2009) at 4 (Table 4), fund at 30 Id. at 12 (Table 12). 31 Rbert C. LaFuntain and Cynthia G. Lee, Medical Malpractice Litigatin in State Curts (April 2011) at 6, fund at 32 Id. at Id. at Ibid. 35 U.S. Department f Justice, Bureau f Justice Statistics, Trt Bench and Jury Trials in State Curts, 2005, NCJ (Nvember 2009) at 5 (Table 5), fund at 36 Ibid. 37 U.S. Department f Justice, Bureau f Justice Statistics, Punitive Damage Awards in State Curts, 2005, NCJ (March 2011) at 4 (Table 5), fund at 38 U.S. Department f Justice, Bureau f Justice Statistics, Trt Bench and Jury Trials in State Curts, 2005, NCJ (Nvember 2009) at 12 (Table 12), fund at 39 Rbert C. LaFuntain and Cynthia G. Lee, Medical Malpractice Litigatin in State Curts (April 2011) at 4, fund at 40 Ibid. 41 Id. at Testimny f Neil Vidmar, Russell M. Rbinsn II Prfessr f Law, Duke Law Schl, befre the U.S. Senate Cmmittee n Health, Educatin, Labr and Pensins, Hearing n Medical Liability: New Ideas fr Making the System Wrk Better fr Patients, June 22, 2006 at 10, fund at help.senate.gv/im/media/dc/vidmar.pdf. 43 Public Citizen s Cngress Watch, Medical Malpractice Payments Declined Again in 2010 (May 2011) at 2, fund at This reprt analyzes data in the Natinal Practitiner Data Bank released May Ibid. 45 Id. at Id. at Id. at Id. at 8 (Figure 5). 49 Natinal Academy f Sciences, Institute f Medicine, T Err is Human (1999). 50 Katherine Harmn, Deaths frm avidable medical errr mre than duble in past decade, investigatin shws, Scientific American Blg, August 10, 2009, fund at Cathleen F. Crwley and Eric Nalder, Dead By Mistake, Hearst Newspapers, August 9, 2009, fund at See als, Cathleen F. Crwley and Eric Nalder, Year after reprt, patients still face risks, Hearst Newspapers, September 20, 2010, fund at 11
12 51 Public Citizen s Cngress Watch, Medical Malpractice Payments Declined Again in 2010 (May 2011) at 4 (Figure 1), fund at This reprt analyzes data in the Natinal Practitiner Data Bank released May Natinal Academy f Sciences, Institute f Medicine, T Err is Human (1999). 53 Cathleen F. Crwley and Eric Nalder, Dead By Mistake, Hearst Newspapers, August 9, 2009, fund at See als, Cathleen F. Crwley and Eric Nalder, Year after reprt, patients still face risks, Hearst Newspapers, September 20, 2010, fund at 54 U.S. Department f Justice, Bureau f Justice Statistics, Medical Malpractice Insurance Claims in Seven States, , NCJ (March 2007) at 1, fund at 55 Public Citizen s Cngress Watch, Medical Malpractice Payments Declined Again in 2010 (May 2011) at 1, fund at This reprt analyzes data in the Natinal Practitiner Data Bank released May Valerie P. Hans and Neil Vidmar, American Juries: The Verdict. Amherst, NY: Prmetheus Bks (2007) at Id. at Id. at Ibid. 60 Ibid. 61 David A. Hyman et al., D Defendants Pay What Juries Award? Pst-Verdict Haircuts in Texas Medical Malpractice Cases, , 4 Jurnal f Empirical Legal Studies 3 (March 2007), fund at 62 Id. at 3, Ibid. 64 Id. at Ibid. 66 Id. at 4, Id. at Shirley Svrny, Culd Mandatry Caps n Medical Malpractice Damages Harm Cnsumers? Cat Institute, Octber 20, 2011 at 3, fund at 69 Ibid. 70 Ibid. 71 Ibid. 72 David M. Studdert et al., Claims, Errrs, and Cmpensatin Payments in Medical Malpractice Litigatin, 354 N Engl J Med 2024, 2025, 2031(2006), fund at 73 Id. at Id. at Id. at (2006). 76 Id. at Ibid. 78 David A Hyman and Charles Silver, The Pr State f Health Care Quality in the U.S.: Is Malpractice Liability Part f the Prblem r Part f the Slutin?, 90 Crnell L. Rev. 893, 917 (2005). 79 Ibid at 920, Maxwell J. Mehlman and Dale A. Nance, Medical Injustice: The Case Against Health Curts (2007) at 47, citing David A. Hyman & Charles Silver, Medical Malpractice Litigatin and Trt Refrm: It s the Incentives, Stupid, 59 Vand. L. Rev. 1085, 1131 (2006). 81 Gerge J. Annas, J.D., M.P.H., The Patient s Right t Safety Imprving the Quality f Care thrugh Litigatin against Hspitals, New England Jurnal f Medicine, May 11, Meghan Mulligan & Emily Gttlieb, Hspital and Medical Prcedures, Lifesavers: CJ&D s Guide t Lawsuits that Prtect Us All, Center fr Justice & Demcracy (2002) at A-36 et seq., B-12 et seq. 83 Maxwell J. Mehlman and Dale A. Nance, Medical Injustice: The Case Against Health Curts (2007) at 47, citing Paul C. Weiler, Jseph P. Newhuse, & Hward H. Hiatt, A Measure Of Malpractice: Medical Injury, Malpractice Litigatin, And Patient Cmpensatin 133 (1993). 12
13 84 Rbert Pear, Reprt Finds Mst Errrs at Hspitals G Unreprted, New Yrk Times, January 6, 2012, fund at (citing U.S. Department f Health and Human Services, Office f the Inspectr General, Hspital Incident Reprting Systems D Nt Capture Mst Patient Harm (January 2012), fund at pdf). 85 Ibid. 86 Carl M. Ostrm, Lawsuit fears aren t reasn fr dcs silence, studies say, Seattle Times, August 17, 2006, fund at (citing frm Thmas Gallagher, M.D. et al, Chsing yur Wrds Carefully: Hw Physicians Wuld Disclse Harmful Medical Errrs t Patients, Archives f Internal Medicine, August 14, 2006). 87 Ibid. 88 Ibid. 89 Ibid. 90 Gerge J. Annas, J.D., M.P.H., The Patient s Right t Safety Imprving the Quality f Care thrugh Litigatin against Hspitals, New England Jurnal f Medicine, May 11, Ibid. 92 Ibid. 93 Michael D. Greenberg et al., Is Better Patient Safety Assciated with Less Malpractice Activity? Evidence frm Califrnia, Rand Crpratin (2010) at x, fund at 94 Ibid. 95 Id. at Id. at Id. at
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