Harvard Study: 40% of Med Mal Claims Baseless

As reported by AP/Yahoo, the New England Journal of Medicine today published an article by researchers at the Harvard Public Health School that concludes that 40% of med mal cases are meritless: either there was no injury or there was no evidence of negligence.  Here's the abstract:

ABSTRACT

Background In the current debate over tort reform, critics of the medical malpractice system charge that frivolous litigation — claims that lack evidence of injury, substandard care, or both — is common and costly.

Methods Trained physicians reviewed a random sample of 1452 closed malpractice claims from five liability insurers to determine whether a medical injury had occurred and, if so, whether it was due to medical error. We analyzed the prevalence, characteristics, litigation outcomes, and costs of claims that lacked evidence of error.

Results For 3 percent of the claims, there were no verifiable medical injuries, and 37 percent did not involve errors. Most of the claims that were not associated with errors (370 of 515 [72 percent]) or injuries (31 of 37 [84 percent]) did not result in compensation; most that involved injuries due to error did (653 of 889 [73 percent]). Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy — nonpayment of claims associated with errors. When claims not involving errors were compensated, payments were significantly lower on average than were payments for claims involving errors ($313,205 vs. $521,560, P=0.004). Overall, claims not involving errors accounted for 13 to 16 percent of the system's total monetary costs. 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.

Conclusions 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.

How do these data fit into the larger debate about whether there is a malpractice crisis, or whether federal tort reform is needed to stem the tide of frivolous lawsuits that are bleeding the system dry?  The answer depends on which side of the fence you're on.  Here (from the AP story) are some reactions:

• "[T]he American Medical Association, which favors caps on malpractice awards, called the study proof that a substantial number of meritless claims continue to slip through the cracks, 'clogging the courts' and forcing doctors to waste time defending them, association board member Dr. Cecil Wilson said in a statement."
• "Chris Mather, a spokeswoman for the Association of Trial Lawyers for America, said the study was biased because data was taken from insurers, which sometimes are the defendants in malpractice suits."
• "George Annas, a Boston University bioethicist who had no role in the study, said he was not surprised by the findings. Many personal injury attorneys receive a contingency fee — meaning they get paid only if they win — and will not go to court with a baseless lawsuit, Annas said. 'There's really no motivation to bring a frivolous lawsuit,' he said. 'It's not worth their time and effort.'"

Forty percent sounds like a ridiculously high percentage of meritless cases, now matter what Prof. Annas says.  And although the system seems to be doing a pretty good job of weeding these bad cases out without payment, the cost of defending the suits to the point of dismissal or defendant's judgment needs to be reckoned (which the article does), as well as the emotional cost to the individual defendants.  Worth reading . . .  [tm]