MALPRACTICE UNSUED

SUMMARY Few prospective litigants have a viable cause of action. Few episodes of substandard medical care that result in adverse outcome are litigated. The medical malpractice playing-field is far from level. Medical specialists who approach expert opinion with a bias are likely to be defence-oriented. There is little agreement between physicians about standard of care.

There is little relationship between the adverse outcome of substandard medical care and medical malpractice awards.

Few prospective litigants have a viable cause of action.

As we have previously discussed, fewer than 5% of cases brought to medical malpractice lawyers for consideration are free from fatal flaws.

The "hat-trick" of substandard care and causation and sufficient quantum of damages is relatively rare.

Few episodes of substandard medical care that result in adverse outcome are litigated.

The other side of the coin is that the majority of viable causes of action are never pursued. The huge 1984 Harvard study in New York State, reported in the early 1990s, suggested that only about 2% of adverse events arising from substandard medical care are ever litigated ¹.

There has understandably been vigorous debate about the validity and generalisability of the study. However, recently reported 1992 research in Utah and Colorado found similar rates and types of negligent adverse events ².

Indeed, even in the US, there are more legitimate causes of medical malpractice action than are ever litigated, but few of those who initiate medical malpractice actions have suffered a negligent adverse event ³.

The issue became high profile when Time Magazine featured a report on the Institute of Medicine publication, To Err is Human: Building a Safer Health System. The statistic that caught public attention was the estimate of 96,000 US lives lost annually from medical malpractice.

We have elsewhere alluded to "novel" preventative approaches adopted by the far safer aviation and aerospace industries.

ECONOMICS

The medical malpractice playing-field is far from level.

Economic disparity between plaintiff and defence is the most obvious deterrent to medical malpractice litigation.

Practice Point Few of the many true victims of medical malpractice are to be found among prospective litigants

Plaintiffs and their families, often as a result of the very damages that an action seeks to recover, are usually poorly placed financially to fund the necessary disbursements. In jurisdictions where they are permitted contingency billing, plaintiff lawyers must balance substantial investment of time and money against the risks of failure.

The Canadian Medical Protective Association (CMPA) boasts a billion dollar war chest, and is willing to spend 80 cents in legal expenses for every dollar paid out in awards and settlements. The average defence expenditure of $100,000 per trial cannot be matched by the average plaintiff, who has, in any case, only a 20% probability of obtaining judgment.

Practice Point The economics of claimant and defence, similar in most personal injury actions, are grossly different in medical malpractice

This defence approach makes economic sense because the CMPA is not an insurance company, but rather a virtual monopoly mutual indemnity organisation. Whereas the plaintiff is concerned only with the short-term economics of pursuing a particular action, the CMPA must consider the precedent-setting effects of losing in any particular arena.

If, for instance, defence counsel can argue successfully that, despite evidently substandard care, the action fails on causation, another 20 similar cases may benefit, and it is therefore worthwhile spending far more than the individual case is worth.

Apart from the direct effects of the daunting economic asymmetry^3a, other factors benefit medical defence indirectly.

EXPERTS UNEQUAL

Medical specialists who approach expert opinion with a bias are likely to be defence-oriented.

Opinions of prospective plaintiff experts are inevitably less predictable than those of defence experts. The best the plaintiff can hope for is a fair-minded review, for a medical malpractice plaintiff-oriented physician is rare.

Therefore, before committing to the cost and permanence of written expert opinion, it is wise to discuss the expert's views verbally, in detail, preferably in conference with both the clinical specialist and a medicolegal resource physician.

Practice Point Always discuss opinion in detail verbally before a written expert report is prepared

Many physicians who provide defence expert opinion have learned to simply decline if they find the defendant's standard of practice indefensible. The plaintiff expert who finds himself or herself unsupportive can and should be asked similarly to provide only a verbal opinion, to conserve resources.

Nevertheless, the average plaintiff cannot, as the defence can, afford to canvass half-a-dozen expert opinions in the hope of obtaining two or three that are supportive.

STANDARDS ILL-DEFINED

There is little agreement between physicians about standard of care.

There is, in many situations, considerable disagreement between physicians about what falls within the range of acceptable standards of care ⁴.

When provided with identical malpractice claim files containing extensive documentation and records, experienced anesthetist peer reviewers agreed on appropriateness of care in only 62% of claims ⁵.

This example is at the high end of agreement, for an analysis of the literature ⁶ on peer review found that most studies reported consensus between physicians to be in the range regarded as poor. That is to say, physician agreement regarding quality of care was only slightly better than the results expected by chance.  In the Harvard study¹, two reviewers agreed only 24% of the time on whether negligence had occurred^6a. 

Practice Point Reasons for poor consensus among experts 1. Incomplete documentation 2. No face-to-face discussion 3. Too few opinions to be representative

Further, peer review committees have a proven advantage over the litigation situation, for face-to-face discussion has been shown to greatly improve consensus ^{5, 7, 8}. However, in the anesthetist example, to increase the level of agreement from good into the excellent range would have required discussion between 5 independent reviewers ⁵ again.

OTHER CONSIDERATIONS

We have previously addressed some of the patient's reasons for suing doctors and the poor relationship between those motivations and the existence of a negligent adverse event.

When caregivers disclose their mistakes to patients, litigation is less likely to follow.

We have elsewhere alluded to the well-established permanent adverse effect that pursuing litigation has on recovery following personal injury.

Perhaps because litigated injury following medical negligence is considerably less common and more diverse, there is not a similar body of evidence on whether pursuing medical malpractice litigation has an adverse effect on healing. There is, however, no reason to think it would prove the exception.

In summary, the 2% of the truly negligent adverse events that are litigated represent about 2% of the enquiries to medical malpractice lawyers, and perhaps one-third of the actions that are filed. As a result of this huge mismatch, the need for efficient screening ( Medical Malpractice News V4,I6 and V5,I1) is again underlined.

Copyright © 2009 Electronic Handbook of Legal Medicine