Medical Negligence Myth 1: There are Too Many "Frivolous" Malpractice Lawsuits

This report is one of a series from the American Association for Justice dispelling commonly believed myths about medical negligence.   It can be found at: www.justice.org/medicalnegligence

MYTH #1: THERE ARE TOO MANY “FRIVOLOUS” MALPRACTICE LAWSUITS

The reality is, there is an epidemic of medical negligence, not lawsuits. Two seminal studies of the patient safety movement have shown that not only are hundreds of thousands of patients injured every year in the health care system, but very few of them sue. According to the Institute of Medicine, 98,000 people die in hospitals each year as a result of preventable medical errors, costing the health care system $29 billion in excess costs.1 Hundreds of thousands more suffer non-fatal injuries. Despite the massive number of medical injuries, medical malpractice lawsuits are uncommon. According to researchers at Harvard, only one in eight people injured by medical negligence file a malpractice claim.2

The number of medical negligence filings has steadily declined in the last decade, as has the amount paid out in jury verdicts and settlements. According to the National Center for State Courts (NCSC), tort cases comprise only about six percent of the civil caseload. Medical negligence cases account for just three percent of the tort subsection. And that number is falling; the number of medical negligence filings dropped eight percent between 1997 and 2006.3

Researchers at the Harvard School of Public Health examined over 1,400 closed medical negligence claims and found that 97 percent of claims were meritorious and that 80 percent involved death or serious injury. According to the authors, “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”4

The authors also acknowledge that many injured patients are motivated to file a claim to discover what went wrong in the course of their treatment. Many doctors and health care centers are not forthcoming when an error occurs, forcing the injured patient to file a claim to obtain information. The Harvard researchers’ “findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.”5

As the number of medical negligence filings have fallen, so too has the amount of money paid out in settlements and jury verdicts. The National Association of Insurance Commissioners (NAIC) has reported that medical negligence payouts dropped over 50 percent between 2003 and 2008.6

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1 To Err is Human, Institute of Medicine, November 1999.
2 Patients, Doctors and Lawyers: Studies of Medical Injury, Malpractice Litigation, and Patient Compensation in New York, Harvard Medical Practice Study, 1990.
3 Examining the Work of State Courts, 2007, National Center for State Courts.
4 David M. Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Ghandi, Allen Kachalia, Catherine Yoon, Ann Louise Puopolo, and Troyen A. Brennan, Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine, May 11, 2006.
5 Ibid.
6 Countrywide Summary of Medical Malpractice Insurance Calendar Years 1991-2008, National Association of Insurance Commissioners (NAIC), 2009.