Yesterday the New England Journal of Medicine released a study on the rates and payments of medical malpractice claims submitted by patients to doctors’ insurance companies. The study found that most claims are dropped without payment. This study has reiterated two points we already know: insurance companies deny far more medical malpractice claims than they pay out and doctors’ perceptions of medical malpractice claims are not in line with actual risk.
The study found that the majority of the largest groups of doctors - internal medicine, family medicine and pathology - will never make a malpractice payment in their lifetime. In fact, for all low risk specialties, 81 percent of physicians never paid a malpractice claim. Additionally, 95 percent of low risk specialty and 67 percent of high risk specialty physicians would not make a payment during the first half of their medical career. Despite the low risk of having a patient file a malpractice claim, most physicians perceive their risk to be much greater than it actually is.
There are also two important points to make about what this study does not do. The researchers only analyzed data from closed claims from one major insurance company. This study did not look at the rate or frequency of medical malpractice lawsuits. This is an important distinction because there is a big difference between a claim and a lawsuit. A claim is filed by a patient with an insurance company, while a lawsuit is filed in a court. The researchers’ use of “lawsuit” and “claim” interchangeably creates confusion, but the two are completely different. Many patients file a claim with an insurance company without filing a lawsuit. In fact, patients who are injured in the course of medical care often have to file a claim just to see what went wrong. These claims do not always lead to lawsuits.
More importantly, this study also does not evaluate the merit of the claims that are dropped. Studies that have actually looked at the merits of closed claims have found that most negligence claims involve medical error and serious injury. In 2006, researchers at Harvard University found most negligence claims were meritorious, with 97 percent of claims involving medical injury and 80 percent involving physical injuries resulting in major disability or death. In fact, researchers found that non-payment of claims where error was involved was a serious problem.
Each year, 98,000 Americans die because of preventable medical errors. Hundreds of thousands more are injured. This new study further demonstrates the plain and simple fact that not enough of these injuries are being compensated. As AAJ President Gary M. Paul stated:
“Hundreds of thousands of Americans are injured by medical negligence every year and as previous research has shown, the majority of malpractice claims are meritorious. What this new study tells us is that the supposed wave of malpractice payments is actually a myth that has been built up by the scare tactics of insurance companies and tort reform groups. In reality, not enough is being done to protect patients and ensure justice.
“A strong civil justice system offers injured patients the ability to hold negligent providers accountable and increases patient safety to help prevent negligence before it occurs. Instead of allowing insurance companies and tort reform groups to perpetuate these myths, we should focus on patient safety as a proven way of reducing claims and saving lives.”
The American Association for Justice (AAJ) released an extensive primer to dispel the myths of “tort reform” and underscore the importance of preventing medical errors and improving patient safety. The primer can be viewed here.