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date: 12 December 2019

Medical Malpractice Litigation

Summary and Keywords

Medical malpractice is the best studied aspect of the civil justice system. But the subject is complicated, and there are heated disputes about basic facts. For example, are premium spikes driven by factors that are internal (i.e., number of claims, payout per claim, and damage costs) or external to the system? How large (or small) is the impact of a damages cap? Do caps have a bigger impact on the number of cases that are brought or the payment in the cases that remain? Do blockbuster verdicts cause defendants to settle cases for more than they are worth? Do caps attract physicians? Do caps reduce healthcare spending—and by how much? How much does it cost to resolve the high percentage of cases in which no damages are recovered? What is the comparative impact of a cap on noneconomic damages versus a cap on total damages?

Other disputes involve normative questions. Is there too much med mal litigation or not enough? Are damage caps fair? Is the real problem bad doctors or predatory lawyers—or some combination of both?

This article summarizes the empirical research on the performance of the med mal system, and highlights some areas for future research.

Keywords: medical malpractice, med mal, defensive medicine, malpractice crisis, premium spikes, tort reform, health economics

Introduction

Medical malpractice (“med mal”) litigation is prone to heated disputes about even the most basic of facts. In March 2018, one of us (Hyman) was riding up a ski lift in Utah, and after talking about the weather and the snow, the subject turned to med mal. (In Hyman’s defense, it was a very long ride on the chairlift, and talking about the weather and the snow only takes up so much time.) Someone else on the lift asked “How much defensive medicine is there really?” In response, Hyman briefly described some of the research that had been done. After listening for 30 seconds, another person on the lift announced that he was a physician. He stated that he had been sued five times—even though he did not do anything wrong in any of those cases. Given that reality, he said “physicians will do whatever it takes to protect themselves,” and “there is a ton of defensive medicine out there.” He was not interested in the empirical research that had been done on the subject. Instead, he said “Just ask any doctor—and they will tell you that all they do is practice defensively every day.”

Physicians care about med mal litigation for several reasons. First, there are the direct financial costs associated with paying premiums for insurance coverage, plus any deductible or above-limits payment in the event a claim is successful. Second, if one is sued, there is the time, effort, and anxiety associated with mounting a defense. But for many physicians, the most important factor is that they view med mal litigation as an attack on their professionalism and self-identify as caring professionals—perpetrated and controlled by a hated rival profession. Finally, no one likes their work reviewed—and to have one’s work reviewed by people one does not respect (i.e., plaintiffs’ lawyers and jurors) makes things worse.

These factors explain why physicians care so deeply about med mal litigation—but not how and why it became an issue on the U.S. policy agenda three times in the past 40 years. After med mal premiums spiked dramatically—first in the 1970s and then again in the 1980s and early 2000s, popular perceptions of a “med mal crisis” led states to adopt a wide array of reforms. Predictably enough, the boundaries of the debate quickly expanded. Plaintiffs lawyers viewed malpractice reform as the stalking horse for a larger anti-civil-justice agenda, with physicians acting as the cat’s paw for much less popular classes of defendants (e.g., drug and medical device manufacturers). Conversely, physicians and reform advocates view malpractice as a major driver of healthcare spending (because it encourages defensive medicine) and a major factor in patient access to medical care (because it influences whether physicians relocate, retire, or limit their practices). The larger politics of the debate also broke down along predictable lines. Democrats, to whom plaintiffs’ lawyers made large campaign contributions, opposed reform. Republicans, to whom physicians and manufacturers made large campaign contributions, favored it.

This article explores the law and economics of med mal litigation and the consequences of the reforms that have been enacted since the mid-1970s. The subject has been extensively studied. In fact, we know more about med mal litigation than about any other aspect of the civil justice system. But, as discussed later, there are areas where further research would be helpful.

The first part of this article provides an overview of the law of med mal. The next section reviews the empirical research on med mal litigation, followed by a discussion of the impact of reform. Next the availability and nonavailability of data with which to study the med mal litigation system is discussed and several areas for future research are identified.

The Law of Med Mal

Not all interactions between patients and the healthcare system end well. Patients who are injured by medical treatment or, in the case of misdiagnosis, by the failure to diagnose and treat correctly, can sue for malpractice. To recover damages, plaintiffs must prove “negligence”—that is, that their providers failed to exercise due care. In general, providers are only liable for injuries resulting from professional negligence.

The plaintiff must establish four elements to prevail: duty, breach, proximate cause, and damages. “Duty” means that there was a relationship between patient and provider sufficient to trigger an obligation to exercise due care in the treatment of the patient. Most of the time, duty is a non-issue, particularly if there is a pre-existing relationship between provider and patient. “Breach” means that the provider failed to exercise the care expected of a reasonably skilled provider. Establishing breach requires expert testimony, since the touchstone for establishing liability is deviation from the standard of care. In many states, customary treatment is by definition not negligent, while other states have moved to a more demanding standard. “Proximate cause” means that the breach of the standard of care is sufficiently closely connected to the injury for a court to treat the breach as the cause of the injury. Finally, “damages” constitute the measure of recovery and take two forms: economic (e.g., lost earnings and medical bills), and noneconomic (e.g., pain and suffering).

The plaintiff bears the burden of proof on all issues, including damages. Proving damages is usually fairly straightforward for economic damages, but it can be difficult when the parties disagree about the patient’s future earnings or the severity or likely duration of the patient’s disability. Noneconomic damages are inherently subjective, but in practice jury awards for pain and suffering are strongly and positively correlated with economic damages.

Lawyers believe the tort system serves three distinct but related purposes: compensation, deterrence, and corrective justice. Compensation means that people who have suffered a negligent injury receive sufficient funds to restore them to the position they would have occupied but for the wrong of the defendant. Because defendants are responsible for paying compensation when they act negligently, they are deterred from behaving in ways that will make them liable. Finally, principles of corrective justice require compensation for the negligently injured come from the injurer, rather than from taxpayers or first-party insurance.

Performance of the Med Mal Litigation System

How Many Claims?

For med mal litigation to do its job, injured patients must initiate claims. The conventional wisdom is that this is a non-problem; obstetricians joke about being sued when Harvard rejects the babies they deliver (Martin, 2004). However, three major studies using data from four different states show that relatively few injured patients demand compensation. Mills (1978) focused on patients hospitalized in California during 1974 and found that negligent injuries exceeded malpractice claims by a factor of 10. The Harvard Medical Practice Study (HMPS) examined hospitalizations in New York in 1984 and found that the number of negligent injuries was 6.7 times larger than the number of state-wide malpractice claims (Brennan et al., 1991). Another study, conducted by researchers associated with the HMPS, looked at hospitalizations in Colorado and Utah in 1992. It found comparable ratios of negligent injuries to statewide claim filings of 5:1 (Colorado) and 6.7:1 (Utah) (Studdert et al., 2000).

To be sure, there are a substantial number of patients who initiate claims even though their injuries were not caused by provider negligence. Such “over-claiming” is common. How effectively does the legal system sort the wheat (meritorious claims) from the chaff (nonmeritorious claims)?

Do the Right People Get Paid—and How Much?

Critics of the tort system argue that it is essentially random, using language like “jackpot justice” and “lawsuit lottery” to describe the manner in which the system allocates payments among claimants. This argument is frequently accompanied by anecdotes describing out-of-control juries and complaints about the irrationality of noneconomic damages.

We start with a basic analytical framework for thinking about the issue. As Table 1 indicates, any system for making compensation determinations will generate four kinds of results: proper payments (i.e., true positives), improper payments (i.e., false positives), improper payment denials (i.e., false negatives), and proper payment denials (i.e., true negatives).

Table 1. A Typology of Malpractice Payments

Was the Claimant Negligently Injured?

Was the Claimant Compensated?

Yes

No

Yes

Proper Payment

Improper Payment Denial

No

Improper Payment

Proper Payment Denial

Proper payments and proper payment denials are the outcomes consistent with the three goals of the tort system (compensation, deterrence, and corrective justice). They occur, respectively, when an individual entitled to a payment receives it and when an individual not entitled to a payment does not. Improper payments and improper payment denials occur, again respectively, when an individual not entitled to a payment receives one and when an individual who deserves a payment goes home empty-handed.

Judged by this basic framework, the med mal system comes to the “right” result most of the time. Claimants who received substandard care usually obtained compensation. Claimants who received proper care generally did not receive compensation. Claimants whose care quality was uncertain wound up in between (Hyman & Silver, 2006). More specifically, a study of claims by HMPS-related researchers found that the malpractice system reached the “right” result about 75% of the time—with false negatives (improper payment denials) being a more frequent problem than false positives (improper payments) (Studdert et al., 2006).

These figures are based on claims that are actually initiated—but a majority of negligently injured patients do not initiate claims. Given that reality, improper payment denials (false negatives) overwhelmingly predominate. Predictably enough, most providers do not proactively seek to identify and compensate those who are negligently injured—although there have been recent promising developments in this direction, including Communication and Resolution Programs (Mello et al., 2014).

When evaluating the frequency of improper payments (false positives), one must keep in mind that almost all of these cases involve a voluntary settlement. When an insurer voluntarily pays a claim that an expert reviewer adjudges to lack merit, the insurer’s behavior makes it much less plausible that the payment was wholly unwarranted. Variation in expert medical opinion likely accounts for many decisions to treat as false positives claims that were resolved with a payment.

What about the adequacy of compensation? The med mal litigation system routinely undercompensates most claimants, although victims with small claims are sometimes modestly overpaid (Hyman & Silver, 2006). Undercompensation also correlates positively with injury severity, so that victims suffering the worst injuries recover the smallest portions of their losses. As one commentator notes, “[t]his pattern of overcompensation at the lower end of the range and under-compensation at the higher end is so well replicated that it qualifies as one of the major empirical phenomena of tort litigation ready for theoretical attention” (Saks, 1992, p. 1218).

Even a large verdict provides no guarantee of full compensation for a serious injury. Comparing verdicts to actual payments in Texas cases where patients won at trial, we found that patients rarely collected large verdicts in full, especially when verdicts exceeded the providers’ insurance policy limits. We also found that that both the likelihood of discounts and their size increased with verdict amount, meaning that the patients entitled to the most compensation (judging by the jury verdict) gave up the most, both in absolute dollars and as a percentage of their verdicts, in post-trial settlement negotiations (Hyman, Black, Zeiler, Silver, & Sage, 2007; Silver, Hyman, Black, & Paik, 2015; Zeiler, Silver, Black, Hyman, & Sage, 2007).

In sum, “the best empirical evidence indicates that medical treatment is a widespread cause of avoidable serious injuries and deaths, that very few victims with an actionable injury bring claims, and that in response to those valid claims the system typically fails to compensate losses fully or, most commonly, fails to provide any compensation at all” Saks, Strouse, and Schweitzer (2005, p. 277).

Trends in Claiming

What do we know about trends in med mal claiming? The best source of information on the subject is the NPDB, which has reasonably complete data on claims against physicians from 1992 on. Paik, Black, and Hyman (2013) showed that there was a “receding tide” of malpractice claiming, with paid claims per 1,000 doctors declining dramatically between 2001 and 2012. Figure 1 presents an updated and simplified version of Figure 1 from Paik, Black, and Hyman (2013), plotting paid claims reported to the NPDB (against medical doctors only) per 1,000 active physicians from 1992 to 2016.

Medical Malpractice Litigation

Figure 1. Paid Claims Per 1,000 Physicians, 1992–2016.

Figure 1 shows that from their peak in 1992 to 1994 (23.3 paid claims per year per 1,000 physicians), claims have declined by 65%, to 8.1 paid claims per 1,000 physicians in 2016. This is a stunningly large decline—particularly given that claims trended downward from 1994 to 1998, stabilized from 1999 to 2001, and then continued declining during the malpractice crisis that hit the United States from 2000 to 2005.

Specialty Risk

It has long been known that some clinical specialties are at a materially higher risk of malpractice claiming. Jena, Seabury, Lakdawalla, and Chandra (2011) use data from a large med mal insurer to evaluate the annual risk of a claim and paid claim by specialty. Their key findings are that surgical specialties (neurosurgery, cardio-thoracic surgery, general surgery, orthopedic surgery, plastic surgery, obstetrics, and gynecology) have the highest risks of a claim and paid claim. At the other end of the spectrum, psychiatry and pediatrics have the lowest risk of a claim and paid claim. Liu and Hyman (2018) find a similar breakdown of risk by specialty in a study of Indiana med mal claims.

Geographic Variation

Malpractice premiums vary not just by specialty but also by geographic location. Press reports indicate some physicians have dramatically cut their premiums by relocating (Tibbles, 2004). One of the few public sources of information on the subject, the Medical Liability Monitor, reports wide variation in med mal premiums at the state and county level (Black, Chung, Traczynski, Udalova, & Vats, 2017).

Malpractice Reform

Malpractice reform comes in many varieties. Table 2 presents a simple typology of malpractice reform, based on Bovbjerg (1989). Although many people use “tort reform” as a shorthand for the universe of malpractice reforms, Table 2 makes it clear that reforms affecting the insurance market and the delivery of healthcare are also fair game.

Table 2. Malpractice Reforms

  1. 1. Insurance Market Reforms

    1. A. Joint underwriting associations/patient compensation funds

    2. B. Prior approval of rate increases

    3. C. Mandatory reporting of closed claims

  2. 2. Medical Quality Reforms

    1. A. Peer review protections

    2. B. Mandatory reporting of liability payouts and errors

    3. C. Requirement for continuing medical education

  3. 3. Tort Reforms

    1. A. Aimed at the number of lawsuits

      1. 1. Arbitration

      2. 2. Attorney fee controls

      3. 3. Certificates of merit

      4. 4. Pretrial screening panels

      5. 5. Legal protection for voluntary apologies

      6. 6. Communication and resolution programs

    2. B. Aimed at the size of recoveries

      1. 1. Damage caps (punitive, noneconomic, and total damages)

      2. 2. Abrogation of joint and several liability

      3. 3. Offset for collateral source payments

    3. C. Aimed at plaintiffs’ difficulty (or costs) of winning

      1. 1. Expert witness requirements

      2. 2. Informed consent limits

      3. 3. Professional standard of care and not ordinary negligence

    4. D. Aimed at functioning/cost of judicial process

      1. 1. Mediation

      2. 2. Notice of intent to sue

      3. 3. Mandatory pretrial conferences/Alternative Dispute Resolution

Source. Adapted from Bovbjerg (1989).

Nationwide, the most popular reforms are caps on damages. At last count, more than 30 states had damages caps, with a majority opting to cap noneconomic damages and a handful imposing caps on total damages. Punitive damage caps are also common. Unsurprisingly, most of the empirical research has focused on the effect of damages caps, although there are studies of other reforms. We briefly summarize past research on the effect of damages caps on insurance premiums, physician supply, and health spending/defensive medicine.

Insurance Premiums

In each of the past three med mal crises, reform has motivated by sudden and dramatic premium spikes, so an obvious question is whether the resulting reforms have actually reduced med mal premiums. A fairly recent systematic review of the evidence observes that the general consensus is that caps moderately slow the growth of premiums, but a “closer and more comprehensive look at the empirical literature reveals mixed results at best” Zeiler and Hardcastle (2012, p. 552). The same review takes a hard look at the methods that were used to generate these results and find issues with almost all previous work: “the literature is in need of better data and more methodologically sound analysis based on comprehensive theoretical models of how various factors, including damages caps, impact premiums” Zeiler and Hardcastle (2012, p. 553).

Physician Supply

Studies of the association between damages caps and overall physician supply are mixed, but many studies find some effect among one or more subgroups. Stewart, West, Schirmer, and Sirinek (2013), Pesko, Cea, Mendelsohn, and Bishop (2017), Helland and Seabury (2015), Lieber (2014), Chou and Lo Sasso (2009), Klick and Stratman (2007), Matsa (2007), Kessler, Sage, and Becker (2005), and Encinosa and Hellinger (2005) found modest effects, while Paik et al. (2017), Hyman, Silver, Black, and Paik (2015), and Yang, Studdert, Subramanian, and Mello (2008) found no effect. In studies that found an effect, the impact was typically limited to particular high-risk specialties, rural areas, physicians of a particular age group, or a combination of these factors (e.g., high-risk specialists in rural areas). In some of these studies, there are also data issues that complicate matters.

Defensive Medicine

Physicians claim to order unnecessary tests and overtreat patients for fear of incurring lawsuits and to help defend themselves in the event a lawsuit is initiated (“assurance behavior”). But they also claim that liability risk causes them to avoid certain types of patients and refuse to perform certain procedures (“avoidance behavior”). The net effect of liability pressure depends on which one of these two effects predominates. Tort reform may reduce assurance behavior (lowering healthcare spending) but may also reduce avoidance behavior (increasing healthcare spending). Once again, it is the net effect of these two effects that determines whether tort reform reduces or increases spending—or has no effect.

Defensive medicine has been extensively studied. Kessler and McClellan (1996) found that damage caps reduced medical spending by 5% to 9%. In a follow-up study with additional controls, they found a 4% to 5% decline (Kessler & McClellan, 2002). Sloan and Shadle (2009) found effects that were smaller and mostly statistically insignificant. Lakdawalla and Seabury (2012) found that lower med mal risk is associated with modestly lower healthcare prices. Avraham, Dafny, and Schanzenbach (2010) found that a noneconomic cap reduced premiums for self-funded health plans (which they used as a proxy for service intensity) by 1% to 2%, but it had no effect on premiums for fully insured plans. Avraham and Schanzenbach (2015) had mixed results, but in some specifications they observed spending reductions of up to 4%.

Paik, Black, and Hyman (2016) found no evidence of a decline (and some evidence of an increase) in Medicare spending following adoption of damages caps. Yu, Greenberg, and Haviland (2018) studied the impact of 10 major state-level reforms and found no evidence that damages caps reduced spending growth in individual-level healthcare expenditures.

We focus in this article on healthcare spending as the outcome measure for defensive medicine, but it is important to note that researchers have also studied the impact of damages caps on clinical behavior. As with healthcare spending, they find mixed results (see Cano-Urbina et al., 2017; Cotet, 2012; Currie & MacLeod, 2008; Frakes, 2012; Smith-Bindman, McCulloch, Ding, Quale, & Chu, 2011; Yang, Mello, Subramanian, & Studdert, 2009).

Potential Future Research

Med mal litigation may be the best-studied area of the civil justice system, but there are areas in which more research would be helpful. One obvious area for further inquiry is presented by Figure 1: Why has nationwide med mal claiming declined so precipitously? In Paik et al. (2013), we find evidence of a decline across all states—including those that have never had damages caps. Second, the post-2001 decline in claiming coincided with sudden and dramatic med mal premium spikes—raising obvious questions about the cause of those spikes and the best way to prevent repetition. A third obvious area for future research is more detailed investigation of the connection between med mal reform and med mal premiums. Fourth, studies of defensive medicine that are better engaged with the subtleties of medical decision-making and clinical variation would be quite useful. Fifth, recent studies have used more sophisticated measures of liability risk than whether a state does or does not have a cap. Further efforts in those directions should be encouraged. Sixth, prior research has focused almost entirely on physicians, but other players (including hospitals) are appropriate subjects of study. Finally, the “new wave” of medical liability reform involves Communication and Resolution Programs. The Agency for Healthcare Research and Quality has funded demonstration projects and planning grants to evaluate these and other reforms. Studies of the effect of these interventions will be necessary to evaluate their utility and cost-effectiveness.

Conclusion

The med mal litigation system has been extensively studied by experts in both law and economics—but much remains to be learned about the key drivers of system performance and how it might be improved. New sources of data would be particularly useful to those interested in working in this area.

Further Reading

Baker, T. (2005). The medical malpractice myth. Chicago, IL: University of Chicago Press.Find this resource:

Danzon, P. (2000). Liability for medical malpractice. In A. J., Culyer & J. P., Newhouse (Eds.) Handbook of health economics (Vols. 1B, pp. 1339–1404). Amsterdam, The Netherlands: Elsevier.Find this resource:

Danzon, P. M. (1985). Medical malpractice: Theory, evidence, and public policy. Cambridge, MA: Harvard University Press.Find this resource:

Weiler, P. C. (1991). Medical malpractice on trial. Cambridge, MA: Harvard University Press.Find this resource:

Weiler, P. C. (Ed.). (1993). A measure of malpractice: Medical injury, malpractice litigation, and patient compensation. Cambridge, MA: Harvard University Press.Find this resource:

Werth, B. (2008). Damages. New York, NY: Simon & Schuster.Find this resource:

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