CENTER FOR JUSTICE & DEMOCRACY 185 WEST BROADWAY NEW YORK, NY 10013 TEL: 212.431.2882 [email protected] http://centerjd.org BRIEFING BOOK MEDICAL MALPRACTICE: BY THE NUMBERS Emily Gottlieb, Deputy Director for Law and Policy Joanne Doroshow, Executive Director March 2021 Update ii CENTER FOR JUSTICE & DEMOCRACY 185 WEST BROADWAY NEW YORK, NY 10013 TEL: 212.431.2882 [email protected] http://centerjd.org BRIEFING BOOK MEDICAL MALPRACTICE: BY THE NUMBERS Table of Contents PART 1: MEDICAL MALPRACTICE LITIGATION 1 Experts agree that when cases are filed, they are not “frivolous”; few injured patients file claims or lawsuits. 1 The number (“frequency”) and size (“severity”) of medical malpractice claims, lawsuits and payouts are low. 3 A small number of doctors are responsible for most malpractice payouts; incompetent physicians are rarely held accountable by state medical boards or the federal government. 7 Sexual abuse of patients goes largely unpunished. 15 Medical malpractice payments are not arbitrary; they reveal negligence and fortell future claims. 19 "Tort reforms” keep legitimate cases from being filed. 21 Physicians greatly misperceive the risk and consequences of being sued; personal assets not at risk. 22 Compensation is for serious injuries or death; high verdicts are almost always slashed; and punitive damages are extremely rare. 24 Medical malpractice cases are not clogging the courts; juries resolve few cases and strong cases settle. 29 iii Lawsuits filed for medical negligence are not frivolous yet it is still difficult for patients to prevail. 30 Experts say and data show that, even with its problems, the current medical malpractice system works. 32 The best way to reduce malpractice litigation is to reduce the amount of malpractice. 33 PART 2: MEDICAL MALPRACTICE, HEALTH CARE COSTS AND “DEFENSIVE MEDICINE” 36 Stripping away patients’ legal rights will not lower (and may increase) health care costs; "tort reform" does not reduce medical tests and procedures ("defensive medicine"). 36 Studies establishing "defensive medicine" are unreliable. 44 "Defensive medicine" is Medicare fraud. 46 The real reason doctors order too many tests and procedures: workload and revenue. 47 PART 3: PHYSICIAN SUPPLY AND ACCESS TO HEALTH CARE 56 “Tort reform” does not improve access to care; physician shortages result from factors having nothing to do with liability. 56 PART 4: MEDICAL MALPRACTICE INSURANCE 63 Premium spikes that doctors periodically experience are unjustified price-gouging and are not caused by jumps in lawsuits or claims. 63 Medical malpractice insurers have been incredibly profitable, with rising surplus, in recent years. 65 Neither "tort reforms" nor "caps on damages" lower insurance premiums for doctors. 68 Industry insiders have said that capping damages will not lower insurance rates. 70 Strong insurance regulatory laws are the only way to control insurance rates for doctors and hospitals. 71 PART 5: PATIENT SAFETY 74 Medical errors occur in alarming numbers and are extremely costly. 74 State-specific error trends are similar. 89 Diagnostic errors are the most common and costly errors. 91 iv Additional categories and causes of unsafe care. 96 Childbirth. 96 Children. 97 Clinics, Doctors’ Offices, Surgery Centers. 99 Concurrent Surgeries. 102 Emergency Rooms. 103 High-Risk Surgeries. 105 Home Health Agencies. 106 Hospice Care. 106 Hospital “Off-Hours." 108 Hospital Transfers. 110 Intensive Care Units (ICUs). 110 Lower-Volume Hospitals. 110 Neonatal Intensive Care Unit (NICU). 111 Non-Teaching Hospitals. 112 Nursing Homes/Long-Term Care Facilities/Skilled Nursing Units. 112 "Off-Service" Placement. 117 Plastic Surgery. 117 Rehabilitation Hospitals. 118 Resident Hand-Off. 119 Stress/Burnout. 119 Surgeon's Birthday 121 Work Shift Timing. 121 Hospitals profit by providing unsafe medical care. 122 The situation is far worse because major errors go unreported and patient safety information is kept secret. 123 Most patients worry about medical errors. 128 Patient safety is suffering because so few injured patients sue. 128 Litigation, settlements and insurance play critical safety roles while "tort reform" laws harm patient safety. 129 “Fear of litigation” is not the main reason doctors fail to report errors. 133 PART 6: SPECIAL PROBLEMS FOR VETS AND MILITARY FAMILIES 134 NOTES 142 v vi PART 1: MEDICAL MALPRACTICE LITIGATION ! EXPERTS AGREE THAT WHEN CASES ARE FILED, THEY ARE NOT “FRIVOLOUS”; FEW INJURED PATIENTS FILE CLAIMS OR LAWSUITS. “Medical Malpractice as a Percent of Total Civil and Total Tort Caseloads: 2012- 2019,” National Center for State Courts, 2021. According to averages calculated from the most recent data released by the National Center for State Courts (2019): • Medical malpractice cases represented only 0.15 percent of state civil caseloads in 2019.1 This rate is consistent with NCSC data from the previous seven years.2 • Medical malpractice cases represented only 3.9 percent of state tort caseloads in 2019.3 This rate is consistent with NCSC data from the previous seven years.4 “How Liability Insurers Protect Patients and Improve Safety,” University of Pennsylvania Law School Professor Tom Baker and University of Texas at Austin Law School Professor Charles Silver, 2018. • “[M]edical liability insurers have always known that most patients who bring medical malpractice claims have suffered significant injuries, and that many of those claims meet the legal standard for tort liability. They have also known that many of those injuries are preventable and, thus, that hospitals and other places where patients receive care still have room for improvement.”5 • “[P]atients must sue to obtain recoveries and, to sue successfully, they must hire attorneys. Because malpractice cases are expensive to prepare and are defended zealously by insurers, plaintiffs’ attorneys choose cases with care.”6 “Medical Harm: Patient Perceptions and Follow-up Actions,” Johns Hopkins University School of Medicine Professor of Surgery Martin A. Makary et al., 2014. Researchers found that a lawsuit was filed on behalf of the patient in 19.9 percent of harms. In other words, “approximately 1 in 5 patient harms resulted in a lawsuit.” As the authors explained, “This is similar to the Harvard Medical Practice Study, which reported an estimated ratio of adverse event to malpractice claim of 7.6:1. Other studies have estimated that as few as 2% to 3% of patients pursue litigation. These findings all suggest that the vast majority of patient harms never result in a lawsuit.”7 “Measuring Diagnostic Errors in Primary Care,” Johns Hopkins University School of Medicine Associate Professor of Surgery Martin A. Makary and Johns Hopkins University School of Medicine Associate Professor of Neurology David E. Newman- Toker, 2013. “Only about 1% of adverse events due to medical negligence result in a claim.”8 Medical Malpractice Payments Remained at Historic Low in 2013 Despite Slight Uptick, Public Citizen, 2014. Public Citizen’s most recent analysis of National Practitioner Data Bank (NPDB) data found that there were 3,046 medical malpractice payments for deaths due to negligence in 2013.9 This means that even if one uses the low end of the IOM estimate – 44,000 deaths per year – about 14 times as many people were likely killed in hospitals in 2013 because of avoidable errors as the number of malpractice payments to survivors.10 Using a 2009 Hearst Newspapers estimate (i.e., 200,000 deaths from medical mistakes per year), just one in 65 deaths was compensated.11 In other words, between 93 and 98 percent of deaths from medical negligence did not result in any liability payment. “Medical malpractice: Why is it so hard for doctors to apologize?” University of Massachusetts Medical School Chief of Pediatric Cardiology Darshak Sanghavi, 2013. “Contrary to many doctors’ beliefs, there is no epidemic of frivolous lawsuits” and “when doctors make an actual mistake, the system is slightly biased in their favor.”12 “The Empirical Effects of Tort Reform,” Cornell University Law School Professor Theodore Eisenberg, 2012. Experts say that those who try to argue that the system is flooded with frivolous lawsuits deceptively interchange the terms “claims” and “lawsuits” to try to make their case. In other words, “[M]isleading impressions about the medical malpractice system, such as the AMA’s statement that ‘75 percent of medical liability claims are closed without a payment to the plaintiff’ (AMA 2006) depend wholly on failing to distinguish between weak cases, which tend not receive payment, and strong cases, which every study shows to receive payment at a higher rate than that suggested by the AMA. Distinguishing between the two groups of studies is important because a claim presented to an insurer is not the same as a lawsuit. And claims against multiple defendants may lead to recovery from only one, leaving three claims without a payment but an incident with evidence of negligence.”13 American Tort Reform Association General Counsel Victor Schwartz, 2011. “It is ‘rare or unusual’ for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring.”14 2 “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” Harvard School of Public Health, 2006. • “[P]ortraits of a malpractice system that is stricken with frivolous litigation are overblown.”15 • Lead author, David Studdert, Associate Professor of Law and Public Health at HSPH, said, “Some critics have suggested that the malpractice system is inundated with groundless lawsuits, and that whether a plaintiff recovers money is like a random ‘lottery,’ virtually unrelated to whether the claim has merit. These findings cast doubt on that view by showing that most malpractice claims involve medical error and serious injury, and that claims with merit are far more likely to be paid than claims without merit.”16 The authors found:17 o Sixty-three percent of the injuries were judged to be the result of error and most of those claims received compensation; on the other hand, most individuals whose claims did not involve errors or injuries received nothing.