We hear many politicians these days calling for tort reform, claiming that the medical malpractice system is broken, and blaming personal injury attorneys. And as time goes on, we will probably hear more of the same rhetoric regarding medical malpractice reform. For example, in 2006 President Bush said, "Lawsuits are driving many good doctors out of practice" and malpractice lawsuits have sent doctors’ malpractice insurance premiums "skyrocketing." You may also hear arguments such as "Greedy trial lawyers are clogging the system with frivolous medical malpractice lawsuits" or "Out of control juries are awarding exorbitant amounts to claimants."
But how much is there behind these statements? Have they really done their homework by studying the data, or have they caved in to the pressures from the insurance industry and the medical community?
The Public Citizen’s Congress Watch, a non-profit consumer watch group in Washington, DC, wanted to find out. In January of 2007 they released a report entitled "The Great Medical Malpractice Hoax." In it they revealed a number of significant findings, but it all boils down to the fact that there is no medical malpractice lawsuit crisis. But more importantly, they found that there is a rising health care crisis.
Using data available in the National Practitioner Data Bank Public Use File (NPDB), Public Citizen’s reviewed medical payment statistics from 1991 to 2005. The NPDB collects information on payments from medical malpractice claims against doctors, payments made by state-run insurance funds and health care providers who are self-insured. Disciplinary actions against physicians by their state medical boards or by hospitals are also included in the data.
There were four key findings in the Public Citizen’s report:
(1) Medical malpractice payments are actually declining. Since 1991, the report states that not only have the actual number of medical malpractice payments remained the same; the dollar value of the payments made to patients has also remained flat.
In 2006 U.S. Rep. Nathan Deal (R-Ga) said, "there is no denying the fact that there is a medical liability crisis in this country." However, both the number and value of malpractice payments have declined since 2001. From 2001 until 2005 the actual number of malpractice payments dropped 15.4 percent, from 16,588 to 14,033. And when adjusted for inflation, the dollar amount of payments rose less than one half of one percent annually from 1991 to 2005 or from $2.11 billion to $2.14 billion.
The NPDB data also showed that when adjusted for inflation, the average payment made to patients from medical malpractice verdicts dropped from $284,896 in 1991 to $260,890 in 2005.
(2) Payments correspond to the severity of the injury. Statements are often made that most medical malpractice claims are frivolous or juries award verdicts for insignificant injuries. The fact is that in 2005, over 62 percent of all payments involved death or major injuries, and over 32 percent of the malpractice payments were for the death of a patient.
The data also showed that the dollar value of jury awards is suitable based on the severity of the injury. A full 82 percent of the total value of malpractice payments is for the most severe injuries. And in 2005 less that 1 percent of the value was for "emotional injury."
Physicians and insurance companies also complain that jury awards have become excessive. The data shows that since 1991 less that one half of one percent of the total payments were for a million dollars or more, and in 2005 were less than 3 percent of all payments made.
The assertion by proponents of medical malpractice reform that $1 million settlements are driving doctors from their practice is just not substantiated by the data.
(3) Patient safety is the real crisis. One of the significant contributors to high malpractice insurance rates is the inability of doctors to police themselves, which puts patients at risk. Too often the state medical boards allow doctors with excessive medical malpractice payments to continue to practice medicine. For example, the NPDB showed that state medical boards have not disciplined 33.3 percent of doctors who had paid out 10 or more medical malpractice payments.
Unfortunately, the highly qualified, successful doctors are being forced to pay higher and higher premiums because of a few bad doctors. In fact, 82 percent of all doctors have never paid a medical malpractice payment. But according to the NPDB, a mere 5.9 percent of physicians have paid out 57.8 percent of all of the medical malpractice payments, and each of them have made at least 2 payments. And doctors with 3 or more malpractice payments paid 32.8 percent of all payments.
The study also showed there has been a significant increase in common, preventable errors. Avoidable errors, such as leaving foreign objects inside a patient or operating on the wrong body part, fell from 1991 to 2003 to a low of 503 errors in 2003. In 2004 and 2005, however, the number of preventable errors spiked to 690 and 705, the highest in the last 11 years.
(4) Improving patient safety will save lives. In addition to reporting the problems with patient safety, the Public Citizen’s report also made numerous suggestions to improve patient safety. Some were requests for Congress and states to take action, while others suggested improvements to be implemented by hospitals.
Congress should establish a national mandatory adverse event reporting system as well as overhaul the Medicare Quality Improvement Organizations.
Hospitals can implement systems and procedures to prevent many of the errors, such as:
- Investment in Physician Order Entry Systems can eliminate medication errors miscommunication and check for drug interactions.
- Implementation of the Joint Commission on Accreditation of Healthcare Organizations’ would eradicate all surgeries on the wrong part of the body and amputations of the wrong limb.
- Fatigue-induced errors can be reduced if duty hours were limited to 80 per week, not an average of 80 per week over a month period.
States should also improve physician oversight by having governor-appointed medical and disciplinary boards, provide more funding for the medical boards and staffing, and improve patient access to physicians’ disciplinary data on the medical board website.
Until these recommendations are implemented by all states, the likelihood of permanent injury or death from medical malpractice or negligence will continue to rise. The partners of Wooten, Kimbrough, Gibson, Doherty and Normand are Board Certified Civil Trial Lawyers and have the experience and resources necessary to handle all types of medical malpractice cases. We have been successful in obtaining settlements for our clients for medical negligence, medical malpractice, hospital abuse, and nursing home abuse. If you have a loved one who has been the victim of medical malpractice, contact one of our attorneys at 1-800-235-7060 or you can email us via our website at www.whkpa.com/contact. The consultation is free and there is never a fee unless we win a settlement for you.
Source: Public Citizen’s analysis of malpractice payments as reported in the National Practitioner Data Bank Public Use File for the years 1990 to 2005.