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Medical Malpractice Costs

David Leonhardt’s column today is a smart take on medical malpractice costs:
The direct costs of malpractice lawsuits — jury awards, settlements and the like — are such a minuscule part of health spending that they barely merit discussion, economists say. But that doesn’t mean the malpractice system is working.
The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate. If a new policy could eliminate close to that much waste without causing other problems, it would be a no-brainer.
At the same time, though, the current system appears to treat actual malpractice too lightly. Trials may get a lot of attention, but they are the exception. Far more common are errors that never lead to any action.
After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error — the teenager who died in North Carolina after being given the wrong blood type, the 39-year-old Massachusetts mother killed by a chemotherapy overdose, the newborn twins (children of the actor Dennis Quaid) given too much blood thinner — there are dozens more. You never hear about these other cases.
So we have a malpractice system that, while not as bad as some critics suggest, is expensive in all the wrong ways.

Kevin Drum has further thoughts:

Here's a little-known fact that helps to make this clearer. If you're injured in a hospital, how do you know if you're the victim of malpractice? After all, not every surgery has a positive outcome. If yours didn't work out, that doesn't mean the doctor was negligent.

The answer is: You don't. Unless you sue. Most hospitals refuse to release their internal records unless you sue them and force disclosure via discovery or a subpoena. This means two things. First, lots of suits that look frivolous (because they're dropped quickly) aren't. They were merely attempts to see the actual records of a case. If there were an easier way to do that, the suit would never have been filed in the first place.

Second, despite our famously litigious nature, suing is a lot of work. Most people don't want to do it just on the chance that there might have been some malpractice. And most people don't. Which means that lots of cases of malpractice are never discovered.

We could fix this pretty easily by making it much easier for patients to see the records of their own cases. If we did, that would cut down on "frivolous" lawsuits and it would increase the number of justified lawsuits. That would be fairer for everyone, but it probably wouldn't cut medical malpractice costs. It would increase them. That's why the medmal warriors never talk about this. They like the idea of cutting back on frivolous suits, but they're much less keen on admitting that there's also a lot of genuine malpractice that goes completely unnoticed.

Even if we eliminated medmal suits entirely, the cost savings would be pretty modest. Genuine reform, on the other hand, would likely cost us money. That's why you never hear much about it.

The sad irony of the malpractice system is that it has led doctors and hospitals to be much less transparent with their data, which has made it harder to find out when things go wrong, which has made it harder to put in place systems that keep things from going wrong. But the best way to reduce malpractice costs would be to reduce malpractice.

The problem isn't in courtrooms so much as on the operating table. But because it's doctors who are angry about malpractice suits, most of the fixes are from their perspective. What we need is malpractice reform from the patient's perspective. That wouldn't be the system we have now, or mere caps on damages: It would be serious work and investment in better practices.

By Ezra Klein  |  September 23, 2009; 4:32 PM ET
Categories:  Health Reform  
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Trial lawyers don't serve corporations.
Trial lawyers give, in general, to Democrats.
Trial lawyers are the problem.

Posted by: AZProgressive | September 23, 2009 4:39 PM | Report abuse

The direct costs are a rounding error and are not the issue. The issue is the defensive posture taken by providers: do every test under the sun so you can never ever be accused of not looking under every rock, and never ever say you may have made a mistake.

The problem with the former behavior is once it gets baked into providers behavior it is very hard to unwind. It becomes 'the way I have always done it'.There is more hope for the latter, however. There are some providers who are now experimenting with more disclosure after an adverse event and early results have been favorable.

Posted by: scott1959 | September 23, 2009 4:55 PM | Report abuse

No-fault malpractice insurance! No-fault malpractice insurance!

... it works for Sweden

Posted by: rusty_spatula | September 23, 2009 4:57 PM | Report abuse

This is an excellent article which provides a reasonable slant on malpractice which I haven't heard before. It makes a lot of sense.
The GOP argument about malpractice seems like a lot of inconsequential nonsense given the small amount of money that might be saved at best..

Texas has malpractice caps. It didn't fix overtreatment in McAllen Texas.

I would like to see a discussion about how electronic records, and best practices can reduce medical errors and malpractice events. The CBO to its discredit doesn't even score the benefits of this to the public health, or to the costs of care.

It is a shame that the news media don't publicize the information that comes out in this excellent series on health care in Ezra Klein's blog. It is the most informative policy blog on the internet.

Posted by: eadler2 | September 23, 2009 5:03 PM | Report abuse

There are a few good points here. First, "The direct costs of malpractice lawsuits .. are such a minuscule part of health spending", second, "the current system appears to treat actual malpractice too lightly" and third, "making it much easier for patients to see the records of their own cases".

This puts the whole issue into perfect perspective, without jumping on the trial lawyers. At present, we NEED the trial lawyers and litigation to guarantee standards of care: without them, we would all be subservient to our "medical masters". Sadly, on the third point, the Recovery Act makes it more difficult for individuals to access their own records, while simultaneously making it easier for the government, employers, and medical malpractice defendants to do so. On the second point, the current proposals to reward "good, cost-efficient treatment" will likely (almost certainly) force physicians and hospitals to more cleverly hide actual malpractice, with cheap-and-sloppy practices being given the greatest funding. The first point is a fact; however, ten dimes add up to a dollar and, particularly at the Federal level, this additive effect of small change is almost always forgotten.

Posted by: rmgregory | September 23, 2009 5:11 PM | Report abuse

1. I agree that the direct costs are minimal, but when folks are pushing to have $4 billion in taxes on specific industries within health care to contribute to the health reform package, this should be given similar scrutiny. You could very similarly see a specific tax on the malpractice industry with similar dollars in mind.

2. The larger point-- yeah, our system is bad for the reasons stated in this post. We should split patient compensation from malpractice review and penalty. The former should be done via a worker's comp like system, based on standardized payouts for different injuries. From the patient perspective, there is little difference if they are injured because of malpractice, or if its due to appropriate practice but a known, rare side effect. As a society, we should want to make those patients whole, the focus should be on patient injury. On the penalty side, its time for state medical societies to go, and instead institute a more robust regulatory scheme on malpractice. Local doctors overseeing local doctors hasn't worked well at all. We need more robust review, stiffer penalties, coupled with an error reduction feedback loop to ensure best practices are shared more widely.

Posted by: wisewon | September 23, 2009 5:21 PM | Report abuse

One of the advantages that the UK's NICE brings to the table there is protection for doctors: a British physician cannot be sued for malpractice if he can demonstrate that he followed the NICE guidelines for effective treatment.

Posted by: Athena_news | September 23, 2009 6:42 PM | Report abuse costs of defensive medicine is about $60 billion a year? Over ten years that would be $600B or about 70% of what Obama needs to fund Obamacare.

But gosh...not a word in the Dem bills about tort reform. Not a word! Guess they'ld rather just jack taxes to fund Obamacare. What the for 10 for 20 trillion.

Posted by: JohnR22 | September 23, 2009 7:25 PM | Report abuse

Aletter I sent to David Leonhardt:

But David why restrict to cardiology? The question is whether tort reform lowers medical costs and decreases the frequency of test and treatments. We have done the experiment. In fact we have done the experiment over 30 times since more than 30 states have some form of tort reform all the way up to Texas with draconian tort reform. The fact is the the cost of medical care in these states is not less than those without tort reform. Even the frequency of tests and treatments is about the same. The data can be found at page 150 ff of . Even if you look at one state like Texas, you will see the cost of medicine varies enormously even though the tort laws are the same throughout the whole state. See Dr Gewande's famous New Yorker article.

But tort reform in Texas DID reduce the number of malpractice suits so injured people received even less redress for their ills.

I hate to use an ad hominum argument, but Mark McClellan's performance when he ran Medicare forces me to have grave doubts about any of his "research" especially when it contradicts other studies including the CBO.

Posted by: lensch | September 23, 2009 7:53 PM | Report abuse

In truth, what these defensive medicine practitioners want is to never be called to account by anybody. Not lawyers. Not patients. Not customer service reps. Not administrators. Not peer review. Not the medical board. Nobody.

When that happens they can finally be their true selves: Careless and Rude. And the unnecessary tests will stop, and costs will go down, and we'll all live happily ever after.

Posted by: bmull | September 23, 2009 8:30 PM | Report abuse

Oh, and what these docs hate more than anything (in spite of all their talk about lawsuits) is to get blog-slammed on the Internet.

So look for a tightening of defamation laws to be a part of any comprehensive malpractice reform.

Posted by: bmull | September 23, 2009 8:56 PM | Report abuse

If you look at all the high medical cost areas, they are also high litigation areas. Miami is not only the nation's most expensive medical care, it is also the most lucrative medical malpractice market in the country. Conversely, the low cost medical states, WA, MN, IO, MN are also low litigation states.


We have no idea how much of the medical care, which is now standard of care, became standard of care for a medical reason or for a legal reason,to discourage or protect against lawsuits.

The enlightened systems in Europe don't allow jackpot justice. Almost no doctors are sued in England, Germany, or France. Evidently, this is the one feature of European medicine we are not interested in emulating.

If you want medical treatment to cost less, then we need to do less. Don't expect the doctor to exclude every possible disease, no matter how unlikely. If we want to decrease the cost of medical care, we need the freedom to lower the standard of care. No MR for ordinary back pain, no defibrillators for the elderly.. etc.

The doctors must determine the standard of care, prospectively. Currently the standard of care is determined in a court by retired postal workers, retrospectively, usually in the context of a tragedy. If you want fewer MR examinations, then eliminate good faith failure to order a MR as a cause of action, even if it might have found the disease earlier.

You can't do less when those around you are doing more without drastic legal reform.

Posted by: ChristopherGeorge | September 23, 2009 9:26 PM | Report abuse

Far more common are errors that never lead to any action.
After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim.

Another reason for this is the fact that in most medical malpractice cases you need a doctor to "rat" on a doctor. Wonder how often that happens? Rarely. Also you need to prove serious loss for most lawyers to even bother. Remember that 33%. 33% of a low number isn't worth their time.

I had a friend who went into the hospital for kidney stones. The doctor lacerated her liver while "zapping" them and she almost died. Spent a week in intensive care. SHe had decent insurance and it cost her about $2000. She was a housewife so she didn't lose a salary. In a couple months she was better. I guess she could have taken him herself to small claims court but again is it worth it??

Posted by: visionbrkr | September 23, 2009 10:26 PM | Report abuse

If everyone were able to be confident that they would have affordable access to medical care if they needed it, there would be a lot less built-in contention between medical providers and patients -- and the issues raised by malpractice would look different.

How much of an issue is malpractice in places where people cannot imagine they may not be able to get access to treatment for medical problems? I don't know, but I suspect instances of physician and hospital error play out differently.

Posted by: janinsanfran | September 23, 2009 10:28 PM | Report abuse

@ Ezra Klein

You are not taking into consideration the amount of money doctors have to pay for med-mal insurance.

My brother has been an Orthopedic surgeon for 21 years. He has never once been sued. His medical malpractice insurance (which is required by NJ law) has risen from $10K to $250k per year. Costs which ultimately get split between doctor and patient. And remember a quarter million a year is not very high for med-mal insurance either. Some doctors in other states pay even more!

Posted by: wzerbo | September 23, 2009 10:50 PM | Report abuse


i've seen that too and know those numbers to be correct and many times for specialists they are higher. I wonder if there are any statistics out there that compare premiums for medical malpractice insurance to actual claims paid out for medical malpractice insurance. That's something never looked at and I know that many doctors when they open up their doors on January 1st of every year start out that $250,000 in the hole and need to do what they do to just make those numbers up.

I've heard statistics that the number of doctors in the US is around 600,000. If I take a random number of say $50,000 for annual medical malpractice insurance per doctor that's $30 billion spent by doctors (and in turn by patients and taxpayers in the forms of health insurance costs and claims). I don't profess to know how but there must be a better way.

Posted by: visionbrkr | September 23, 2009 11:28 PM | Report abuse

We've been scammed. People (and doctors) assume that high malpractice premiums actually reflect high malpractice payouts by the insurance companies. This is not the case. Malpractice payouts--the amounts that insurance companies actually pay to malpractice victims--per doctor, adjusted for inflation--have been virtually level for over 30 years. Total claims have been decreasing for the past 10 years. Hard to believe, but this is a fact and it's based on actual filings by the insurance companies themselves. Doctors are being fleeced by the insurance companies, and have been convinced by a drumbeat of constant propaganda that "litigious patients" and "trial lawyers" are the cause. In fact, insurance companies have badly managed their reserves and are making up for investment losses by increasing premiums. They hide this very easily, because the public is convinced that lawsuits and "jackpot payouts" are "exploding", a well-entrenched urban legend. The facts back this up. Go the the web site of Americans For Insurance Reform and read the analysis "True Risk" (PDF). It's an eye-opener. The premiums they are demanding from doctors are simply not justified by the actual losses experienced.

Posted by: mitch4949 | September 24, 2009 9:04 AM | Report abuse

There are numbers available regarding malpractice insurance income and payouts. They are roughly 2:1. Overall, the profits on the medmal industry are said to be around 12%, which is higher than other sectors.

Check out

and the table on page 10 of

The conclusion is that, overall, medmal companies took in $3 for every $1 they paid out in 2004. And now they want us to legislate even fewer payouts.

Posted by: rjsgso | September 24, 2009 9:20 AM | Report abuse

Do you idiots know how much the Doctors' Malpractice Insurance COSTS? Do you have ANY idea? Since Malpractice Awards are "just a small part" in the Medical scheme of things, perhaps you can tell us why the OB-GYN population is disappearing. Or what the our buddy EZRA is smoking, when he says that the endless number of TESTS that the Doctors are FORCED to perform, are only a Miniscule part of the actual costs. I wonder who all these TRIAL LAWYER SUPPORTERS are, that are writing in to comment on the Clueless Ezras' column? You don't suppose they're LAWYERS, do ya? Naaaaaaaahhhhhhhh. Pathetic.

Posted by: GoomyGommy | September 24, 2009 9:43 AM | Report abuse

Hey, Goomy (wonderful name), no one is arguing that the high premiums are not a problem. It's obvious that they are driving doctors away. But the answer is that the level of premiums are completely out of whack with what the ACTUAL malpractice awards are. I know this is hard to believe...for you, maybe impossible. But again, go to and examine the actual numbers submitted to the regulators by the insurance companies. They are simply overcharging, and they've successfully snowed the doctors into blaming someone else for the overcharge. The numbers don't lie. I guess these FACTS are interfering with your jihad against "trial lawyers". But facts are facts. You can still hate the lawyers, but find a different reason...assuming you need one.

Posted by: mitch4949 | September 24, 2009 10:03 AM | Report abuse

Medical malpractice as it is currently constituted in most states really does nothing to serve the doctors, the patients, or the public. As an attorney who deals on the periphery of medical issues via workers compensation, I see a number of things that cause problems all around. First, doctors are terrified of medical malpractice lawsuits. Much of this terror is completely unjustified but it is undeniably there. They worry about being stuck in a courtroom with a slick lawyer and 12 people who couldn't pass high school biology deciding their fate. As a result, they do practice defensive medicine. Every headache gets a CAT scan, every fetal monitor abnormality gets a C-section and anybody with chest pain gets sent to a cardiologist probably to have a heart catheterization.

From the patient's perspective, there seems to be an expectation that any problem can be fixed and that no surgery should have a bad result. Of course if this was true, we'd all live to be 140. All surgeries are risky, all of them can kill you with or without malpractice, and all of them can have a bad result with or without malpractice. Finally, it makes no difference to the person injured whether it was the result of malpractice or simply a bad result.

Probably the fairest system would be to go to a no-fault system with limited by certain payout regardless of the malpractice. Further, physicians would have to be better regulated so that true instances of malpractice are discovered and punished not by lawsuits but by regulatory bodies of experts. This is what is supposed to happen but rarely does given the adversarial nature of the malpractice system. Finally, it would get a rid of the tremendous transactional costs associated with the adversarial system. Medical malpractice attorneys universally charge 40% of any recovery plus the costs of case expenses which can run into the tens of thousands of dollars. this is why a majority of malpractice cases are never brought, the costs are simply too high as compared to the damages. A no-fault system would get rid of some of those transactional costs and instead give them to the injured party. There are no easy answer standing of this, but are current patchwork adversarial system doesn't really serve anyone.

Posted by: sgaliger | September 24, 2009 10:10 AM | Report abuse

tort reform is not any sort of helpful medical reform. Rather, it serves a good use as a bribe to doctors to get on board with health care reform and cost cutting. Cut doctors' malpractice insurance premiums and they'll be more tolerant of cuts to medicare reimbursement.

*Do you idiots know how much the Doctors' Malpractice Insurance COSTS?*

That's a big problem for the doctors, but many people are blind to the fact that doctors' expenses are a small part of overall health care costs. And don't call us "idiots"-- we're not the ones who are too slow to understand math.

Posted by: constans | September 24, 2009 10:26 AM | Report abuse

Great post and thread, thanks for the links. What might the national debate be like if discussions like this one were the norm, I wonder. And thanks to Ezra for providing the forum and setting the tone.

Posted by: sblaisdell | September 24, 2009 10:42 AM | Report abuse

Insurance may be a small part of total healthcare costs or a small part of the gross domestic product, but that is not a relavant comparison. Malpractice insurance is a high fraction of doctor income, in specialty practice. Doctors are unable to raise prices in the face of rising malpractice expenses. Malpractice insurance has been rising at 12% a year for thirty years. Just as overall healthcare costs cannot forever rise faster than the economy in general, malpractice insurance is rising in price at a rate which is unsustainable.

Posted by: ChristopherGeorge | September 24, 2009 11:02 AM | Report abuse


BUT, how about all of the doctors that have moved their practices from entire counties and states.
How about those doctors (especially obgyn) who have given up baby delivery.

Law suits are far more damaging to our system than the media or Libs want to admit.

Posted by: CyKick | September 24, 2009 11:06 AM | Report abuse

Article from the New England Journal of Medicine: "The Legal System Works!"

The oft-repeated political argument for restricting patients’ legal rights is that undeserving patients are overburdening the system with too many “frivolous” medical malpractice lawsuits. However, on May 11, 2006, the New England Journal of Medicine published a definitive study that debunks this myth once and for all.

As summed up in Harvard’s release accompanying the article, “the new study by researchers from the Harvard School of Public Health and Brigham and Women’s Hospital challenges the view that frivolous litigation is rampant and expensive.”

Among the studies findings:

“Portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

Most injuries that result in claims are caused by medical error. 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.

Claims typically involve injuries that are severe. Eighty percent of claims involved injuries that caused significant or major disability or death.

Even though the large majority of claims (63 percent) involve error, those that do not involve error are not “frivolous.” As noted by the authors, “The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.”

The vast majority of resources go toward resolving and paying claims that involve errors. “Disputing and paying for errors account for the lion’s share of malpractice costs.”

Most instances of medical malpractice do not result in a lawsuit. “Previous research has established that the great majority of patients who sustain a medical injury as a result of negligence do not sue. … [F]ailure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.”

Few claims result in court trial and with regard to those that do, juries are conservative.

Only fifteen percent of the claims were decided by trial verdict.

Patients “rarely won damages at trial, prevailing in only 21 percent of verdicts as compared with 61 percent of claims resolved out of court.”

Posted by: mitch4949 | September 24, 2009 11:15 AM | Report abuse

*[Malpractice] Insurance may be a small part of total healthcare costs or a small part of the gross domestic product, but that is not a relavant comparison.*

Of course it's a relevant comparison (with respect to health care costs). The main concern here is about reform of the healthcare *system*. Playing around with tort reform is just tinkering at the margins, yet it is consistently sold by Republicans as the solution to all of our problems, when it hardly solves anything.

I have more sympathy for the situation doctors find themselves in than most, but the truth is that if we're talking about "bending the cost curve" and making health coverage more accessible and portable for the public, tort reform doesn't really play into it. If you're a doctor, all you see are the problems that doctors have.

Posted by: constans | September 24, 2009 11:16 AM | Report abuse

Sorry, one more (counter-intuitive) article:

"New Study Finds Malpractice Premiums Only A Small Fraction of Doctors’ Expenses"

Despite claims by some doctors that rising malpractice premiums are driving physicians out of business, new data confirms that for many years, insurance premiums have made up only a small percentage of total expenses for doctors, including “high-risk” specialists.

In the first known study to compare doctors’ premiums to their total expenses and incomes, researchers analyzed the American Medical Association’s own physician surveys. The study is published in the May/June 2006 edition of Health Affairs magazine. According to the study:

From 1970-2000, premiums increased only slightly. In 2000, premiums were lower than in 1986. From 1986-2000, there was a sizable decline in premiums while other expenses surged.

The decrease in premiums as a percentage of total expenses between 1986 and 2000 was attributable to a decline in premiums combined with increased spending for other practice expenses.

“For the specialties, premiums also decreased as a percentage of total expenses from 1986 to 2000—most notably for OB/GYN, for which premiums declined from 20 percent to 13 percent. OB/GYN premiums decreased $487 per year, while total practice expenses increased $5,305 per year.”

“National trends were reflected in the nine regions with slight variations… In no region were premiums as a percentage of total expenses more than three percentage points higher than the national mean during any year.”

“Although premiums rose from 1996 to 2000, practice revenue declined nationally and for specialties (except for OB/GYN). It was revenue decline and increases in nonpremium expenses, not premium increases, that account for the overwhelming share of falling income. For OB/ GYN, revenue increased slightly, but income declined because of large increases in practice expenses. However, increases in premiums were less than one-twentieth the size of increases.”

The average physician income in 2003 was still between the ninety-fifth and ninety-ninth percentiles for all Americans.

Posted by: mitch4949 | September 24, 2009 11:19 AM | Report abuse

The claim that overtesting is all about defensive medicine has always seemed weird to me. First, because doctors are educated in a system that prizes knowledge whether it is immediately useful or not. Second, because most reimbursement systems make tests a profit center for doctors. Follow the incentives.

Posted by: paul314 | September 24, 2009 1:32 PM | Report abuse

@ Mitch4949

''Patients “rarely won damages at trial, prevailing in only 21 percent of verdicts as compared with 61 percent of claims resolved out of court.” ''

Think for a second, if the Doctors win 79% of the time why do most cases settle out of court? The reason is that for the Doctor a 'win' means having to pay hundreds of thousands of dollars of legal bills and months or even years in emotionally draining litigation process. This is the problem with living in one only countries in the world that doesn't have a loser pays law. For the patient it's a lottery ticket they either win or lose. For the Doctor it's either lose millions or win and pay hundreds of thousands in legal bills and waste months or even years of their life going through our legal system. But for the Lawyers who bill by the hour, it's all win.

The lack of a loser pays law is why we live in a country that has a shortage of doctors and an overabundance of lawyers.

Posted by: wzerbo | September 25, 2009 12:46 AM | Report abuse

Does anyone really think that after tort reform is passed that malpractice insurance companies will suddenly say the following:

"gee, our liablity is less now we have tort reform; let's lower our premiums so we don't get a windfall"

Most of these anecdotal "outrages" or "frivilous" suits have been found to be less than "outrageous" when the full trial transcript has been read by people
who dont accept the one sided, sensationalized, very dubious reports
of the latest law suit "outrage" by angry talk show hosts and news papers
who need outraged readers or listeners-in the case of radio talk hosts -for their continued existence.

The truth is, tort reform legislation prejudges and limits an
American citizen's constitutional right to have their case heard by a jury
of their peers

It's up to the trial judges to discern when a suit has no legal merit,
and rule in favor of every defendant's predictable motion for summary judgment.

And trial judges generally do a good job in dismissing cases which do
not state a claim for which there is a legal remedy.

And lawyers who file a spurious law suit can be sanctioned by the trial judge, and in egregious cases they can be disbarred. Thus, the spurious law suit is mostly,but not entirely, and urban legend-spread by doctors and insurance lobbyists

It's up to the trial judges to discern when a suit has no legal merit,
and rule in favor of every defendant's predictable motion for summary judgment.

And if after scrutiny by a judge, the claim states a case for which relief can
be be granted, then there must be a trial to determine which side is supported by
the relevant facts. If it does not state an actionable claim, it is summarily dimissed

And that is the way it should be-and we don't need legislators tinkering with a good and fair process, to insulate powerful and wealthy defendants from responsibility for their actions.

That is why many rightly call tort reform, the "Wrong doers Protection Act"

I would rather not see the government further limit the rights of ordinary
people to seek redress in the courts against powerful well financed
defendants with well funded lobbyists like the AMA has.

These are the folks behind so-called "tort reform", which is just a way
to preempt a jury trial as guaranteed by the constitution for persons
requesting access to the justice system.

Why not put a cap on the outrageous malpractice insurance
premiums if we want to impose a government solution into private matters?

Posted by: dcucich | September 25, 2009 12:53 AM | Report abuse

Oh yeah, all this "defensive medicine" is profitable. These scans and diagnostic procedures on people too old to survive surgery are not free-they are engorged with profit-often are totally unnecessary.

My grandmother the age 87 was taken for a gall bladder study because she complained of periodic abdominal pain. They knew it was her gall baldder but wanted to document it.

After "documenting" it; they said: "sorry but you are not a good risk for gall bladder surgery"

They sent a bill to medicare stating, "that will be two thousand dollars please"...

"defensive" medicine my foot! In many cases it's profit driven diagnostics. Hospitals can't pay an x-ray or MRI tech 60-70K per year to sit around waiting for a medically necessary procedure to be done.

Posted by: dcucich | September 25, 2009 1:22 AM | Report abuse


Doctors win 79% of the time because, again contrary to popular opinion, juries are biased against plaintiffs. Yes, they are. Why should juries be immune to the 40-year campaign to paint the image of jackpot awards for a hangnail? In fact, the reason so few lawsuits are filed compared to the actual malpractice that goes on is because the victims don't want to be seen as moneygrubbers. By the way, insurance companies are aware of these odds, and now most refuse to settle anymore, knowing that they will win in court.

As far as "loser pays" provisions: evenhanded appearances notwithstanding, the bill would dramatically tilt the field in favor of corporate defendants. It is much easier for corporations with deep pockets to absorb the legal fees of their victims than it is for their victims to pay the cost of corporate legal teams.

If the loser-pays provision is enacted, many potential plaintiffs will be intimidated from bringing suit at all. Under the current contingency fee system, an injured party - regardless of his or her income - can file a suit with no up-front investment. Many plaintiff lawyers take cases on a contingency-fee basis, accepting a percentage of what they win for clients as their fee. But under the loser-pays system, if the plaintiff lost, he or she would be liable for a potentially staggering corporate legal bill. This would convert filing a lawsuit into a high-stakes gamble, deterring many injured parties from filing suit. I guess one could see this as a positive, but some would differ.

Posted by: mitch4949 | September 25, 2009 9:27 AM | Report abuse

A couple of questions:

If the malpractice insurance companies are paying out so much less than they take in, why isn't a 'public option' malpractice insurance being proposed as part of health care reform?

Also, Klein and the two quoted commentators make the claim that only a small number of actual cases of malpractice go reported. I would like to hear how they know this - if there is no trial or formal investigation.

Posted by: invention13 | September 25, 2009 10:26 AM | Report abuse

@ Mitch4949

On 9/25 you wrote:

'' By the way, insurance companies are aware of these odds, and now most refuse to settle anymore, knowing that they will win in court.''

But on 9/24 you quoted the New England Journal of Medicine which said:

''61 percent of claims resolved out of court.”

So you are contradicting yourself there. The reason that 61% of claims are resolved out of court is because most of the time winning is too expensive.

''In fact, the reason so few lawsuits are filed compared to the actual malpractice that goes on is because the victims don't want to be seen as moneygrubbers. ''

The number of med-mal lawsuits have skyrocketed over the last ten years. And as far as victims not wanting to be seen as moneygrubbers, I challenge you to find a study to back that statement up.

As far as the Loser Pays Law and people being intimidated. I don't know about that. People living in Canada don't seem to intimidated. Nor the people living in the U.K., Germany, France, Switzerland, Italy, Sweden, Norway, Japan, etc.

The only reason that we don't have a loser pays law is because of the American Trial Lawyers Association. If you don't want to believe me then listen to Howard Dean, who came right out and said that the only reason there isn't tort reform is off the table is because the Democratic Party doesn't want to take on the ATLA.

Posted by: wzerbo | September 25, 2009 2:16 PM | Report abuse


I'll give you the statement about insurance companies refusing to settle...that was quoted from an attorney who used to handle a lot of these cases, but who doesn't even bother anymore.

The NE Journal of Medicine said that "Most instances of medical malpractice do not result in a lawsuit. Previous research has established that the great majority of patients who sustain a medical injury as a result of negligence do not sue." Please explain this odd phenomenon considering the litigious nature of the general public, combined with the ease of getting a sure settlement from the insurance company.

As for malpractice claims, insurance company filings state that claims have declined 45% in constant dollar amounts, since the year 2000. Most people don't read the filings, it's much easier to go by the gut or by Drudge. What are your sources for the "skyrocketing" claims? As A.M. Best put it, "overall the most significant trend in results over the five years through 2008 is the ongoing downward slope in the frequency of claims". The absolute number of claims is down, along with averages per doctor, and the amounts paid out in claims. But those are just based on actual insurance company numbers, so please ignore them.

As for the loser-pays law, how do you know that it doesn't intimidate people living in countries that have it? How could it not? What would be the point of the law, then? Are you sure it won't discourage many valid suits from being brought by people who can't risk their life's savings?

Posted by: mitch4949 | September 25, 2009 3:14 PM | Report abuse

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