Lecture 24 - 12/2/99

Medical Malpractice

What is the specific role of medical malpractice in addressing quality?

Myths About Medical Malpractice

5 Myths

• There are too many malpractice suits.
• Only "good" doctors are sued.
• Dispute resolution in medical malpractice is a lottery.
• Medical malpractice plaintiffs are overcompensated for their losses.
• The high cost of health care: Oh those d___ malpractice suits (and greedy patients).

Data Sources

• Harvard Medical Practice Study (New York)
• Survey of Medical Malpractice Claimants--Birth-related and ER injuries
• Survey of Obstetrical Care (Florida)
• Other data: surveys of physician practices, premium data from insurers, etc.

Myth 1: There are too many malpractice suits.

Normative standard: How many is "enough?"

• Goals of medical malpractice: deterrence, compensation, give victims "day in court," information revelation
• Litigation cost (chart)
• Precise or nearly precise optimum unknowable

Evidence on Underclaiming

• National trend in claims frequency (chart)
• Only about 2% of "valid" claims are brought
• "Invalid" claims (not matching study’s determinations of negligence from medical charts) outnumber valid ones 3 to 1 (chart)
• Difficulty obaining legal representation in medical malpractice cases (tables)

Myth 2: Only "good" doctors are sued.

Survey of Obstetrical Care

• MPR conducted survey in 1992:963 women who delivered birth in Florida in 1987
• Survey content: maternal risk factors, patterns of obstetrical care received, choice of obstetrician, satisfaction with care received, birth outcomes at 5 years, whether claim filed, hospital charts
• Oversampled: deaths & anticipated adverse outcomes; OBs with bad suit history

Methodology

• Defined 4 groups of OBs based on prior suit history: high pay (claims and payments per yrmean); high frequency (others with payments per yrmean); no claim; other
• Survey not linked to medical malpractice
• Process review of charts by nurses and obstetricians

Key Findings

• Patients of high freq. doctors more likely to complain they felt rushed, never received explanations for tests, were ignored (tables)
• Problems with physician-patient communication most commonly offered complaints
• No link between prior malpractice claims experience and technical quality of practice

Discussion and Implications

• Claims against academic medical centers relatively rare
• Errors rare even among physicians frequently sued
• Is there a better way to improve patient satisfaction with care?

Methodology

• Surveyed 187 claimants who had filed malpractice suits
• Obtained data on clinical history before injury, legal issues, cost of injury, amount compensated and its allocation, satisfaction with legal process, hospital charts
• Medical evaluations of liability
• Valuations of damages

Key Findings

• Statistically significant differences in stage of resolution according to MD panels’ liability rating (table)
• Among drops, panels found defendants not liable almost 3x as often as liable
• Among settled cases, ratio reversed
• For cases decided at verdict, liability rating and verdict outcome systematically related

Implications

• Relationship between independent panels’ liability rating and outcome of case not perfect--many uncertain cases
• Yet outcomes are not random

Myth 4: Medical malpractice claimants are overcompensated for their losses

Key Findings

• Costs of injuries can be considerable (table)
• Compensation about half of cost (economic loss) (table)
• Lots of plaintiffs receive nothing
• Undercompensation persists even after adjusting for lawyers’ fees, compensation from collateral sources, and favorable tax treatment of awards

Implications

• A very inefficient system for compensating injury victims
• Flat caps on awards not justified
• Hard to see how alternatives (no-fault (especially), ADR) that would perform better on compensation could cost less

Myth 5: The high cost of health care

Aggregate Annual Costs of Professional Liability, 1985

• Premiums paid by physicians--$3.7 billion
• Value of physicians’ time imn court, etc.--$0.1 billion
• Cost of defensive medicine--$11.7 billion
• Total cost of professional liability--$15.4 billion
• Total expenditure on physicians’ services--$82.8 billion

Why 15.4/82.8 overstates the cost of professional liability

• Some compensation goes to injury victims--so cannot appropriately count whole $3.7 billion
• Some "defensive" medicine (as defined in study) is valuable--e.g., talking to patients, better documentation
• However, psychological cost is counted and this could be considerable

Conclusions

• Medical malpractice, especially as we know it, is here to stay
• Some potentially promising approaches exist--to be discussed in Session 6
• Medical malpractice at best a second rate quality assurance mechanism
• Much "conventional wisdom" not supported by data