Too Many Malpractice Suits, Or Not Enough?

By Solange De Santis
ConsumerAffairs.com

October 18, 2004
Medical malpractice has become a political football, one that's been kicked around in the presidential campaigns and debates. For the Republicans, curbing medical malpractice and other "frivolous" suits is a key theme of the campaign. Four states will vote Nov. 2 on whether to enact legislation limiting such lawsuits.

The American Medical Association warns that million-dollar jury awards and a flood of frivolous lawsuits are increasing the cost of doctors' insurance and creating a "full-blown liability crisis."

But not everyone agrees that there are too many malpractice lawsuits and few studies support the arguments used by the damage caps' proponents. In fact, Amitai Etzioni, who teaches sociology at George Washington University, says flatly there are too few lawsuits.

For every patient who sues, there are several who should but don't, says Etzioni.

Etzioni quotes a 1990 Harvard University study which found that only one out of eight patients who had a valid medical malpractice claim actually filed a suit. The study examined the records of more than 30,000 patients in New York -- one of the nation's most litigious states -- and discovered that in 1984 nearly 13,000 cases supported by "strong or certain evidence of negligence" were never pursued in court.

The Harvard study found that 3.7% of all patients suffered from complications caused by doctors. Later studies have found that number to be as high as 17.7%. Among the complications cited: the surgical removal of the wrong leg or kidney, brain damage to newborns and transplant procedures that didn't properly match donor and recipient.

In 2000, the National Academy of Sciences' Institute of Medicine found that between 44,000 and 98,000 patients died every year because of mistakes made by doctors and other healthcare personnel.

Why so few suits? As Etzioni sees it, many patients didn't know that it was negligence that caused their new problem. Others refuse to sue because they consider it human to err, or are grateful to a physician of many years for past care, or are fearful that they will be refused treatment if they file suit.

But even if there aren't too many malpractice suits, aren't the high jury awards associated with those that are filed wreaking havoc?

As it turns out, says Etzioni, more than two-thirds of malpractice lawsuits are either dismissed or dropped before they can be settled or brought to trial, so no massive awards result. And when plaintiffs do prevail in malpractice, really large jury awards are rare and are often scaled back on appeal, Etzioni said.

Frivolous suits can be dealt with without punishing those who deserve compensation, Etzioni argued. Louisiana, for instance, has malpractice review panels made up of three doctors and an attorney who are responsible for ruling on the merit of claims. Patients who wish to file a suit first have to submit their cases to these panels. If a panel rules that the case is without merit, a plaintiff still may bring his or her suit, but the panel's report can be filed with the court.

Lawyers reject claims that they are too quick to accept malpractice cases.

"As attorneys, our job is to protect the injured whose lives are ruined by physicians who don't appear to care enough about the patient to exercise reasonable care, or who have not kept up with their studies," said Chicago attorney Clifford Horwitz. "Thanks to malpractice suits, many of these physicians have lost their surgical privileges because they have butchered and ruined so many people."

Horwitz also argues that the $250,000 cap for pain and suffering damages is a red herring.

"If $250,000.00 is the cap on damages, will insurance carriers pay $250,000.00? Ever? No, they won't. Why should they? Since that is their maximum payout on their case, they will instruct their attorney to get the plaintiff to accept less or to try the case," Horwitz said.

No Cure-All

In many states, supporters of damage caps have argued that malpractice suits drive doctors out of state, limitiing access to medical care by the state's residents. But a 2003 report from the General Accounting Office (GAO) found that malpractice suits do not appear to significantly limit access to health care.

GAO examined the experiences in five states with reported malpractice-related problems (Florida, Nevada, Pennsylvania, Mississippi, and West Virginia) and four states without reported problems (California, Colorado, Minnesota, and Montana) and analyzed growth in malpractice premiums and claims payments across all states and the District of Columbia.

But the GAO said that, although some physicians reported reducing certain services they consider to be high risk in terms of potential litigation, such as spinal surgeries and mammograms, GAO did not find access to these services widely affected, based on a review of Medicare data and contacts with providers that have reportedly been affected.

Nor is it a certainty that damage caps reduce doctors' insurance costs, a recent Texas survey found.

Texas enacted damage caps last year and the number of lawsuits filed has been declining. But more than half the state's doctors have yet to see a decrease in their liability insurance premiums, the Dallas Morning News reported.

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