News & trends
April 2007 | Volume 43, Issue 4

Public Citizen report debunks med-mal myths

Alba Lucero Villa, Associate Editor

Medical malpractice payments to injured patients have been declining, despite the rising number of preventable medical errors, according to a recent report by Public Citizen.

The Washington, D.C.-based consumer advocacy organization analyzed malpractice payments reported in the National Practitioner Data Bank (NPDB) between 1990, the year the data bank was established, and 2005. It concluded that patient safety—not medical negligence litigation—is the real crisis. Contrary to widespread myths about skyrocketing payments to plaintiffs, the report found:

• The number of malpractice payments declined by 15.4 percent in the time period studied.
• The average annual payment decreased by 8 percent in that period and never exceeded $1 million after inflation adjustments.
• In 2005 alone, the sum of judgments for more than $1 million comprised less than 3 percent of the total value of malpractice payments.

The report suggested that malpractice payments are neither unpredictable nor irrational, as tort “reform” advocates claim, but instead correspond to severity of injury. More than 82 percent of the total sum of payments compensated patients who suffered the most severe injuries, and plaintiffs whose cases involved a “minor permanent injury” received 55 percent less than those who had a “significant permanent injury.”

“Rather than providing irrational awards to undeserving plaintiffs, the current medical liability system is rational in its outcomes,” the report concluded. The highest payments have gone to the families of people who died as a result of medical malpractice. In 2005, more than 64 percent of payments involved death or major injuries, while less than 2 percent were for an “insignificant injury.”

In response to the report, the American Medical Association (AMA) issued a statement questioning the reliability of data obtained from the NPDB—which is maintained by the Department of Health and Human Services—citing a 2000 study by the Government Accountability Office that found discrepancies in the database.

“What the AMA doesn’t tell people is that the data is actually revised every quarter,” said Seth Oldmixon, a legislative assistant at Public Citizen’s Congress Watch group and the author of the report.

Other groups, such as the Physician Insurers Association, joined the AMA in criticizing the report’s methodology, particularly its use of the medical care services index instead of the consumer price index to measure inflation.

“If you really want to determine a just compensation, you have to adjust for inflation based on the unusually high rate of inflation that medical services fall under,” Oldmixon countered.

The critiques are “a red herring to distract from the real problem that there is a lack of serious attention to patient safety and physician oversight,” he said. “There is a virtual epidemic of medical errors plaguing the country.”

The Public Citizen report echoed findings from a 2006 Harvard School of Public Heath study that reviewed 1,452 closed malpractice claims from five liability insurers and determined that 80 percent involved injuries resulting in “significant or major disability or death.” The Harvard study concluded that “portraits of a malpractice system that is stricken with frivolous litigation are overblown,” and “the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter.”

The study also noted that while 63 percent of injuries were the result of a medical error, one in six of those claims did not result in compensation.

In addition to recommending improvements in patient safety and health-care provider training, Public Citizen’s report stressed the importance of disciplining repeat offenders. Only 33 percent of doctors who made 10 or more malpractice payments were disciplined by their state medical board, and some doctors with up to 31 med-mal payments have never been subjected to any disciplinary action, according to the report.

Currently, attorneys and patients have no way of knowing who these doctors are, as the NPDB Public Use File conceals practitioners’ personal information. The report urged Congress to lift the veil of secrecy, especially considering the small percentage of doctors responsible for the majority of the malpractice committed.

While 82 percent of doctors had not made a medical malpractice payment since 1990, 5.9 percent of the others accounted for 57.8 percent of all malpractice payments since 1991, according to the data.

“The report pokes a hole in the myth that it’s lawsuits that are driving malpractice insurance premiums through the roof,” said Jeffrey Roy, a Boston-based attorney who handles medical malpractice cases. “It validates a lot of what we have been saying for a number of years—that there is a great medical malpractice hoax.

“When I visit or speak with any group, I talk about these types of studies,” Roy said. “There’s still a level of skepticism out there [about medical malpractice claims]. People have been trained and brainwashed over the past couple of years. As more data like this comes out, we are going to be able to turn that page.”

The full text of the report, The Great Medical Malpractice Hoax, is available online at www.citizen.org/documents/NPDB%20Report_Final.pdf.