Correspondence
Outcomes of Medical-Malpractice Litigation
N Engl J Med 1997; 336:1680-1681June 5, 1997
- Article
To the Editor:
The Harvard Medical Practice Study is responsible for the widely cited extrapolation implying that America's doctors “kill 80,000 patients a year,”1,2 and the study authors have previously asserted that there are, if anything, too few rather than too many malpractice suits filed in the United States.1 Brennan et al. (Dec. 26 issue)3 report that the severity of the patient's disability, not the presence or absence of negligence, predicted the outcome of the medical-malpractice claims they identified. This is a remarkable finding, considering that each year our tort system generates approximately one suit for every 2.5 obstetricians, neurosurgeons, and orthopedists and nearly one suit for every 5 physicians overall.
Much of the problem with the study by Brennan et al. lies in the seemingly innocuous definitions of “adverse events” and “adverse events due to negligence.” The authors themselves could not classify the same events in the same way when they attempted to reproduce their own data.4 Adverse events, both grave and minor, were lumped together whether or not physicians caused them, and the methods simply averaged the assessments of two reviewers whose specialties were not identified as to whether negligence was “more likely than not.” It is therefore not surprising that the study methods did not correspond to legal standards, as the results of my recent study have confirmed.5
5 ReferencesRichard E. Anderson, M.D.
The Doctors' Company, Napa, CA 94558-09001
Weiler PC, Hiatt HH, Newhouse JP, Johnson WG, Brennan TA, Leape LL. A measure of malpractice: medical injury, malpractice litigation, and patient compensation. Cambridge, Mass.: Harvard University Press, 1993.
2
Rice B. Do doctors kill 80,000 patients a year? Medical Economics. November 21, 1994:46-56.
3
Brennan TA ,Sox CM ,Burstin HR . Relation between negligent adverse events in the outcomes of medical-malpractice litigation. N Engl J Med 1996;335:1963-1967
Full Text | Web of Science | Medline4
Localio AR ,Lawthers AG ,Brennan TA , et al. Relation between malpractice claims and adverse events due to negligence -- results of the Harvard Medical Practice Study III. N Engl J Med 1991;325:245-251
Full Text | Web of Science | Medline5
Anderson RE. An “epidemic” of medical malpractice? A commentary on the Harvard Medical Practice Study. Civil Justice Memorandum. Vol. 27. New York: Manhattan Institute Center for Judicial Studies, 1996:1-7.
To the Editor:
Over the past 19 months, our law firm has received 323 calls regarding possible claims of medical negligence. We have filed suit about 1 of these potential claims and are evaluating 11 others.
The reasons for filtering out 96 percent of the calls can be broken down as follows: 76 calls (23 percent of the total) involved people thought to have been permanently injured as the result of medical negligence, but not seriously enough to warrant the expense of litigation; 70 (22 percent) involved people with preexisting conditions that made weeding out the true effect of the negligence profoundly difficult; 40 (12 percent) involved cases in which the statute of limitations had expired; 36 (11 percent) involved bizarre or incoherent stories that did not warrant further investigation; 30 (9 percent) involved people who had not been injured permanently; 29 (9 percent) concerned people who had a poor result of either orthopedic surgery or neurosurgery that was not due to negligence; 18 (6 percent) involved people who did not comply with recommended medical treatment and thus added to their travails; and 12 (4 percent) involved people who lied to us about important facts in their cases.
Our experience should be comforting to physicians, since our method of screening effectively keeps the number of potential claims down. It is in our best interest to pursue only meritorious cases, because we receive compensation only when a case is successfully settled.
Elizabeth Grove, R.N.
Michael A. Ferrara, Jr., J.D.
Ferrara and Rossetti, Cherry Hill, NJ 08002-2864To the Editor:
The conclusion that the severity of the patient's disability was the only statistically reliable predictor of a payment to the plaintiff is not surprising. Permanent disability, disfigurement, and unexpected death all create substantial problems for both the physician and the physician's insurance company. From an economic standpoint, the risk of losing a multimillion-dollar judgment in a catastrophic-injury case often drives a settlement when there is a question about whether the case can be defended. The effect of sympathy for family members who have undergone a devastating loss should also not be underestimated.
With regard to the absence of correlation between occurrences of malpractice and indemnity payments, there may be a flaw in the study methods used. In my view, the majority of cases cannot be classified as either due to medical negligence or not due to such negligence, even by the finest panel of medical reviewers. Many cases involve questions of medical judgment and are not easily classifiable in this manner. Well-qualified experts retained by the plaintiff and the defendant can disagree completely about the same facts. As a rule, such cases should be defended vigorously.
Moreover, many cases involve questions of fact. In those cases, whether the physician met the standard of care cannot be determined by reviewing the records, because the patient and the physician are in dispute about what happened.
Robert I. Rubin, J.D.
Frontier Insurance Company of New York, Ft. Lauderdale, FL 33309Author/Editor Response
Dr. Brennan replies:
To the Editor: Rubin questions our conclusions by noting that in many malpractice cases the classification of the outcome as due or not due to negligence is difficult. In addition, he points out that different parties can interpret “facts” differently. My coauthors and I agree that such decisions are complicated but think this concern may be overstated. In fact, in our study, we found a great deal of agreement between the conclusions reached by our reviewers and those reached by the litigants in the final disposition of the cases.
Grove and Ferrara point out that 96 percent of the inquiries they receive about medical malpractice are eventually turned away by their office. This does not surprise us. We suspect that among the 4 percent of cases that they do accept, there are a certain number in which there is clearly a disability, but not so clearly negligence or even an injury caused by medical management. In such circumstances the disability drives the decision to take the case.
The Doctors' Company has generously collaborated with our research team on studies of medical injury and litigation. Nonetheless, we must take issue with some of Anderson's assertions. His statement that “each year our tort system generates approximately one suit . . . for every 5 physicians overall” gives a figure considerably higher than those in other estimates. Nowhere in our previous report in the Journal 1 did we state that we could not classify the same events in the same way a second time. Our analyses have consistently differentiated adverse events according to the severity of injury and the causal agent.2
2 ReferencesTroyen A. Brennan, M.D., J.D., M.P.H.
Harvard School of Public Health, Boston, MA 021151
Localio AR ,Lawthers AG ,Brennan TA , et al. Relation between malpractice claims and adverse events due to negligence -- results of the Harvard Medical Practice Study III. N Engl J Med 1991;325:245-251
Full Text | Web of Science | Medline2
Weiler PC, Hiatt HH, Newhouse JP, Johnson WG, Brennan TA, Leape LL. A measure of malpractice: medical injury, malpractice litigation, and patient compensation. Cambridge, Mass.: Harvard University Press, 1993.
- Citing Articles (2)
Citing Articles
1
Tom Baker. (2005) Reconsidering the Harvard Medical Practice Study Conclusions about the Validity of Medical Malpractice Claims. The Journal of Law, Medicine & Ethics 33:3, 501-514
CrossRef2
Brennan, Troyen A., . (1998) More on Outcomes of Medical-Malpractice Litigation. New England Journal of Medicine 338:10, 690-690
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