Every year the nonprofit organization Public Citizen in Washington, D.C., does a review of the national data for medical malpractice cases. Its most recent report was of data for 2011, which reveals that medical malpractice payments were at the lowest level since 1991. The number of malpractice payments made on behalf of physicians fell for the eighth consecutive year in 2011. What does this tell us?
While there is always a hue and cry about lawyers driving up the cost of medicine, the reality is that medical malpractice payments on behalf of doctors accounted for just 0.12 percent of national health costs last year, which translates into only one-eighth of one percent.
Despite allegations that most lawsuits are frivolous, the vast majority of payments compensate for extremely serious harms. In fact, 80 percent of the money paid in 2011 compensated victims or their surviving family members for harms defined by the National Practitioner Data Bank (NPDB) as involving significant injuries like quadriplegia, brain damage, injuries requiring lifelong care and even death.
As for costs of litigation vs. costs to consumers, between 2000 and 2011 the value of medical malpractice payments fell by 12 percent while health care spending rose by 97 percent, nearly doubling. Thus, claims that medical malpractice litigation is responsible for rising health costs are totally false.
Unfortunately, not much has changed in terms of care since 1998, when the Institute of Medicine issued its famous report titled “To Err Is Human.” It concluded that as many as 98,000 patients were dying each year because of avoidable medical errors. Most of those people or their families never knew they had a malpractice case or went forward to file one.
The inspector general for the Department of Health and Human Services concluded in 2010 that one in seven Medicare patients in a hospital’s care experienced a serious adverse event. Unfortunately, of those adverse events, including death, 44 percent were preventable. Those findings translate to more than 700,000 Medicare patients that experience a serious, preventable adverse event every year, including nearly 80,000 suffering preventable adverse events that contribute to their death.
Comparing the prevalence of medical errors with the small number of malpractice payments led the Public Citizen analysis to conclude “that the overwhelming majority of medical errors do not lead to litigation.” In contrast to the thousands of annual, avoidable adverse events discussed above, only 9,758 medical malpractice payments were made on behalf of doctors in 2011. In fact, research shows that about half the value of malpractice payments is intended to compensate for the future medical care and costs of patients.
When victims of malpractice do not receive compensation, their future costs have to be borne by somebody. That is often the victims themselves or the government. Thus, what is told to legislators as fact by the hospital associations and medical societies does not reflect the reality of the situation.
Chuck Douglas, a Concord attorney, is a former state superior and Supreme Court justice and member of Congress from New Hampshire.