The True Cost of Litigation

The battle over malpractice rages on with providers on one side and the lawyers and plaintiffs on the other. The latter side feels that malpractice costs are minimal and simply represent a “cost of doing business,” while providers make the case that they endure unnecessary stress, expenses, and the impossible burden of having to be perfect, 100% of the time. More than unnecessary, providers feel, the tort system for medicine takes them away from direct care activities, and distances them psychologically from their patients.

The article 2% of Physicians Involved in Half of Malpractice Settlements but Few Doctors are Sanctioned makes the claim that malpractice is a function of “bad and incompetent providers”.

“Fewer than 2% of all physicians reporting to National Practitioner Data Bank (NPDB) over the past 25 years were responsible for half of all settlements, a total of more than $41 billion”. The implication being made is that bad doctor’s account for a majority of payouts. That’s just irresponsible hocus-pocus. Why? For for many reasons, but the first glaring one is the other half of settlements therefore come from the remaining 98% of physicians. That’s is a big piece of the medical workforce.  In addition, an obvious bit of statistical legerdemain is present. It is called sampling error.  By just looking at settlements, one only sees the tip of the iceberg.  That’s what sank the Titanic, and it has a sinking effect on the practice of medicine, too.  What is under the surface of such a view? The cost of litigation, defense, trial, deposition, and on-and-on add up to a much more massive number than $41 billion.  And, it does not end there. The costs of psychological stress, work lost, defensive medicine, cumulatively add to the huge burden malpractice litigation places on those whose are just trying to help others by means of medical science.

While the report Medscape Malpractice Report 2015: Why Most Doctors Get Sued states that “Fifty-nine percent of respondents to the Medscape survey have been named in at least one malpractice suit. Nearly half (47%) were among others named in the suit, and 12% were the only parties sued. While among the specialties surveyed, some were sued more than others, no physicians are immune. A 2010 American Medical Association (AMA) survey reported that among all physicians, 61% had been sued by late career

The last article discusses Ten Notable Physician-related Malpractice Statistics, “Most physicians will face a malpractice lawsuit at some point in their careers. More than 61 percent of doctors older than 55 have been sued at least once, according to the AMA.”   “General surgery and OB/GYN physicians are most likely to be sued.  Nearly 70 percent of physicians surveyed in these specialties had been sued, and 50 percent of physicians in these specialties had been sued twice, according to the AMA report.”

It is a fantasy to think that that eliminating “bad” providers will eliminate malpractice. No provider is immune. In fact, almost every physician in a high risk specialty (such as 1.Ob-gyn, 2. General Surgery, 3. Neurosurgery, 4. Orthopedic Surgery, 5. Emergency Medicine) will be named in a lawsuit during their career.

It is important to remember that most statistics do not include the cases where multiple providers are named and subsequently dropped by the plaintiffs. That’s common, as plaintiff’s lawyers generally name everyone whose name appears anywhere they look. Yet, being named alone is more expensive, stressful, and potentially practice changing.

The depth of despair that such suits cause in providers is rarely revealed. Many consider it not unlike a “death in the family,” leading to depression, increased “defensive” medicine, and even leaving the profession. Defensive medicine occurs when patients begin to be seen as potential adversaries, and possible heartaches, instead of someone that needs help. Defensive medicine leads to excessive work-ups and tremendous costs. When the legal profession says that malpractice costs are reasonable, they do not factor in the billions of tests ordered just to cover all bases.

The “other side” is correct that recurrent offenders are infrequently sanctioned. Patients who were injured by “true” incompetence should be compensated, but bad outcomes are not necessarily the results of negligence. Sometimes, though it is not often brought out in litigation, the patient just had a bad disease.

When adding up the potential benefits of removing the malpractice hammer hanging over everybody’s head, the amount would be staggering. Critics would argue that states like Texas have made providers immune to most malpractice, but it takes years to end the paranoia of lawsuits.

Adopting a non-adversarial and non-lottery type malpractice system, across the board, would serve both patients and providers and cut the cost of medicine significantly. But when talking about this huge expense within medicine, it is quite like the elephant in the room that no one wants to admit is there (especially the lawyers).  But the smell is still obvious to everyone.