Legal Report: Rational Court Results for Med Mal?

Analysis of malpractice claim outcomes indicates cases with errors usually result in payment, and cases without errors usually don’t.

Commentators

• David Studdert, LLB, ScD, MPH; Harvard School of Public Health; Boston, MA

Transcript

In this month’s legal report, Managing Editor Tom Augello interviews Dr. Studdert to explore what the findings suggest for physicians and their patients.

How do patients sort through adverse outcomes and perceptions of error or even negligence? Harvard School of Public Health researcher David Studdert of Brigham and Women’s Hospital recently led a study in the New England Journal of Medicine that reviewed a random sample of medical malpractice claims for the prevalence of medical error, and the costs of claims that contained no errors. Dr. Studdert’s team found that three-quarters of the cases that contained medical errors resulted in payment, and three quarters of the cases that did not appear to have problems with the medical care resulted in no payment.

I think for patients there is a certain amount of investigation that they would attach to filing a lawsuit.  Is it automatic that cases that have no error are also frivolous?

It’s a very good question, and it is one that we were sensitive to in interpreting our findings or at least we tried to be. We tried to avoid use of the term frivolous litigation because it is rather pejorative, and in some cases it is not clear that what we are really looking at is frivolity. A case that reviewers decided was a close call, for instance, as to whether or not an error had occurred, in many situations what you might find is that the plaintiff’s attorney and the plaintiff are really trying to find out what’s happened by filing a claim. It is an expensive way to find out, but in our current system, sometimes it can be the only way to find out.  So there is this sense of a litigation process as a kind of information revelation process, and I think that might be the explanation for some of these cases. Because it doesn’t make business sense for the plaintiffs’ attorneys to be bringing a case that doesn’t involve an error unless there are extenuating circumstances that make it very likely because of the egregiousness of what had happened that that will get paid. It is not a good bet for plaintiffs’ attorneys, and they have other better cases to choose from.  So I think we have to be aware that sometimes what commentators might call frivolous claims are really claims where people are trying to figure out what the heck happened.

Do you think that the misperception that there are a lot of frivolous or that all claims are in a sense frivolous, does that distract clinicians and hospital administrators from doing the kinds of things that might actually prevent legitimate complaints?

We didn’t look at defensive medicine, per se. We have looked at that in other research, but I think the phenomenon of defensive medicine is very real. I think, notwithstanding the fact that most claims seem to involve error, the steps that hospitals and doctors take to avoid claims or to respond to the threat of claims can be counterproductive.  They can be expensive and they can be wasteful, so I think that one way or another, we have to figure out how to deal with defensive medical practice because, although there are no great estimates of what the costs of it are system-wide, they’re likely to be very substantial.

Finding that there are a significant amount of claims that have error involved in them, there is on the other side a perception among many clinicians that of almost a sense of resignation, not knowing that there is legitimacy to these claims feeling that well, no matter what I do, somebody is going to bring a claim.  I shouldn’t really pay too much attention to the prevention and the handling of adverse outcomes, it doesn’t matter much.

Yes, there are survey data to suggest that physicians tend to overestimate the likelihood that they will be sued, and that may affect the way that they practice.  I think we have to be a bit careful in talking about error and negligence. Much of the recent scholarship in the field of patient safety has suggested that many of the things that go wrong in medicine, including what are ostensibly individual mistakes, can be traced back to faulty systems and insufficient support networks for physicians that operate in very complex environments.  While the malpractice system tends to focus on the sharp end of the problem, that is, the provider and the mistake that has occurred, we are increasingly looking back up the chain of causation to institutions. So I think that might also feed a physician’s sense of recognition and hopelessness, the notion that they simply can’t do anything about some of these things that go wrong because, you know, to err is human and everybody is fallible. I think I would certainly have some empathy with that view.  It is not clear to me that the wisest approach to prevention here is simply to try to nail every mistake and every error in the hospital.

What would you like to be the take home message?  What would you like physicians and others in health care to take away from this study?

Well, I think that physicians might take away from this study the sense that these events are not completely random, although it might seem that way in individual instances and in specific anecdotes. On the whole, there is a reasonable targeting of errors due to breakdowns in care when it comes to malpractice litigation.  When that’s not targeted well, that is, when a claim is brought with respect to something that is really very appropriate care, usually those claims will be denied payment, at least among the insurers we looked at. 

I think there is a much more important message from our study though to policy makers, and that’s really the audience that we were focused on when we wrote up our findings.  As we think about tort reform, there has been a lot of emphasis on purging the system of frivolous litigation, certainly the White House has been very strong on that message. I think what our study shows is that yes, there are some gains to be made in that area, but really that’s not the main gain. The lion share of costs, the lion share of claims, involve error and if we want to make the system work more efficiently, then we need to look to other types of reforms for improvements.

David Studdert is Associate Professor at the Harvard School of Public Health.