Jeffrey Segal, M.D, a board-certified neurosurgeon and the founder and president of Medical Justice Services, Inc., weighs in on the study that 37% of malpractice lawsuits involved no medical error.
We know that taking frivolous and unfounded medical malpractice cases out of the courts, before they are filed and cost money, is a way to reduce the cost of healthcare.
The recent New England Journal of Medicine study found the same thing. The study said that many—37 percent—malpractice cases did not involve errors and three percent did not involve any injuries. And most of the claims that were not the result of errors or injuries did not result in compensation.
When compensation was paid, 54 cents of every dollar spent in cases that did not involve error went to administrative expenses, including those involving lawyers, experts and courts.
To me, perhaps the study’s greatest use is that it will spark further discussion that can lead to a realistic solution. But I have some concerns about the sample that the Journal employed.
The study’s authors note that 30 percent of the defendants were trainees, including residents, fellows and interns. But according to the National Practitioner Data Bank 2004 Report, interns and residents accounted for less than 1 percent of all malpractice payment reports. The authors admit that academic institutions were overrepresented in the sample and created an inherent limitation in the study.
But, given the preponderance of physicians-in-training in the sample, it is difficult to make a conclusion about the true error / total claim rate across the country. Those with the least amount of training would be more likely to make more true errors both in planning and execution.
Next, the data appears to be based on a claim as defined from the plaintiff's perspective; that is, there is one claim no matter how many defendants. That’s not the way typical medical malpractice cases work. A legitimate claim is actually more likely to have multiple defendants, for example, the referring physician, the emergency room physician, the surgeon, the radiologist, the anesthesiologist, etc.