How trial lawyer urban legends get started

by Ted Frank on July 30, 2008

Public Citizen wrote a report about New York medical malpractice that said:

Physicians who made three or more malpractice payments between 1990 and 2006 – accounting for no more than 4 percent of New York’s doctors – were responsible for nearly half (49.6 percent) of medical malpractice dollars paid out on behalf of doctors in the time period.

This is technically true, but wildly misleading; we previously refuted this precise statistic as a natural statistical consequence of any randomly distributed set of payouts–and given that doctors in high-risk professions such as neurosurgery or ob/gyn are far more likely to be sued than dermatologists or gerontologists, the random concentration effect is going to be even more pronounced, so the Public Citizen statistic is meaningless without a showing of speciality-adjusted correlation between time periods–something no study has ever found.

But note how blogger Eric Turkewitz writes an op-ed in a small-town New York newspaper that isn’t even satisfied with simply misleading the public, and says something that is out-and-out false:

4 percent of the state’s doctors contribut[e] to half of the malpractice suits [emphasis added]

Not remotely true. “Nearly half of payments” has been turned into “half of malpractice suits.” Justinian Lane, who knows or should know that the latter statistic isn’t true, because his blog posted about the original statistic, then repeats the lie either thoughtlessly or deliberately:

Maybe doctors should discipline the four percent of doctors that make up half of all malpractice claims.

Will either of them retract the false claim with the same fanfare that they made it? Stay tuned. (They certainly won’t explain that there’s nothing damning about the accurate statistic–though I have been refuting this for over three years, Public Citizen and trial lawyers and their fans continue to regurgitate the data as if it means something.)

{ 24 comments }

1 E-Bell 07.30.08 at 10:27 am

I’m disappointed in Turkewitz. He seems like he’s an okay guy (for a personal injury lawyer).

He’s a regular commenter here, so I’d like to hear what he has to say about this.

2 Taylor Lincoln 07.30.08 at 11:48 am

Ted is trying to have it both ways here. On the one hand, he argues that 4 percent of doctors being responsible for about half of the dollars paid out in medical malpractice cases is a “meaningless” statistic because it can be explained as expected random distribution. On the other hand, he claims that the statistic can be explained because certain doctors are more likely to be sued because of their specialties, i.e., that the statistic is *not random.* The only possibility he does not explore is that the distribution is not random and inures to the quality of the doctors, which is our view. No, our statistic does not *prove* that more dangerous doctors are more likely to make malpractice payments but nor does Ted disprove it. Armed just with nothing more than these numbers and common sense, I would bet that our hypothesis is correct. (The bit about the share of doctors responsible for the percentage of *lawsuits* versus percentage of *payouts* was probably just a mistake by the writers Ted cites, rather than a sinister attempt to deceive. By Ted’s random distribution theory, the ratios would plot out the same if one did measure numbers of lawsuits. Slow news day at Overlawyered?)

Now, I am going to interject some other information into this discussion — “behind the numbers,” as it were. About 1 percent of New York’s doctors rely on a special state-managed program for insurance because commercial insurers deemed them too risky. Note: this is the market talking here, not Public Citizen. Insurers no doubt have the ability to discern random distributions as well as the best sabermaticians. Before we published our New York report last fall, I had a lengthy conversation with the man who runs New York’s high-risk insurance program. He told me story after story about the incompetence and carelessness of doctors he had investigated. The trends involved substance abuse, anger problems and the use of outmoded techniques. The chief reason that New York is facing a medical malpractice “crisis” right now is because the state pool was undercharging these doctors relative to their level of risk, and ended up hemorrhaging $500 million in red ink (which, by law, had to be absorbed by the commercial carriers in proportion to their market share). Note, these doctors lost all of these malpractice lawsuits *after* they were put into the high-risk program, typically for atypical previous losses. That fact is damning to the argument that medical malpractice payments are just “random.”

There is a follow-up to the troubles suffered by the high-risk pool. Its new management has availed itself of permissions to raise rates significantly for high risk doctors, up to almost 300 percent of conventional rates. The effects have been two-fold. First, the program is no longer running deficits. Second, the rate shift has prodded dangerous doctors in high-risk specialties to shift their practice areas, e.g., from obstetrics to gynecology. That, in the view of the lifelong insurance executive who runs the high-risk program, has resulted in safer care for New Yorkers. (See our report, available here, http://www.citizen.org/documents/NYFinal.pdf, at 16.) In that way, the market worked.

The bottom line is that the 4 percent figure is just one lens into the issue of medical malpractice. Our inquiry into New York revealed two much more significant facts. First, medical malpractice payments are not rising. Our review found that the number of payments is at an all-time low and that the amount of dollars paid out over the past five years has been either slightly below average or slightly above average, depending on how one corrects for inflation and population. The reason it is in the news is because the state mismanaged its high-risk program, first by siphoning money out of reserves then by failing to charge high-risk doctors sufficient premiums to cover their future losses.

Second, it is undeniable that New York’s medical care has to be safer. New York’s comptroller issued a scathing report about a year ago accusing the state’s medical conduct oversight department of gross negligence. Among the findings: Doctors who had been suspended by Medicare or Medicaid went undetected by the oversight department. I won’t go into the rest of the findings, but they were disconcerting and are summarized on pages 25-26 of our report.

Finally, it’s a shame that this issue has to be approached with such ideological rancor. The sensational arguments about medical malpractice notwithstanding, the underlying stores are tragedies. Most payouts are for very serious outcomes. I doubt that any reader of this blog would accept paralysis, brain damage, or death in exchange for a malpractice payment of any size. The real question is how can we encourage care that results in fewer instances of paralysis, brain damage, and death?

3 Paul 07.30.08 at 12:49 pm

You ask how to encourage the best care in the same comment you talk about how massive premium increases have moved doctors out of obstetrics? I’ll tell you how to encourage better care: start putting as much effort into encouraging the best doctors to stay in practice as you have put into extracting money from doctors who had the temerity to try and help people by choosing high-risk specialties.

4 Eric Turkewitz 07.30.08 at 12:56 pm

Ted:

You are correct that this should refer to payouts as opposed to suits. It seems a small nit to pick though given that the main substance of my piece goes to problems at the Dept of Insurance during the Pataki years that caused a problem, and the secondary issue of 4% of the docs being responsible for almost 50% of the payouts.

A couple of additional things worth noting:

Since I was responding to someone claiming “unusually high judgments” as a reason for increases in malpractice insurance, this was the main point of the piece (though not the headline written by the paper).

It is also worth noting, as further evidence of the fallacy of the letter-writer, that judgments have increased only 1.2% per year (adjusted for inflation) from 1991 to 2004, according to this 2005 Public Citizen study (chart on p. 6):

http://www.citizen.org/documents/Malpracticeanalysis_final.pdf

In addition, the report linked here also makes clear that nearly 83% of doctors have never had a payout since the national data bank was started in 1990. Since most of my focus was on the Insurance Dept., that bit hit the cutting room floor. But it lends further support to the fact that a few doctors are causing a disproportionate number of payouts. Good docs are paying for the mistakes of bad docs.

With respect to your statistical analysis: Since the report I cited about 4% of docs being responsible for almost 50% of payouts was issued in 2007, I don’t know how you could have refuted it for three years. All you did was discuss a statistical theory that shows that a random distribution might result in a skewed result. But you never, as far as I can see, addressed this particular 4%/50% case. You tried to take your theory to the conclusion that the “statistic is fallacious,” but the only real conclusion you can draw is that, under certain circumstances, it might be.

This statistical conclusion you reach that this is all random is rather unlikely, as Taylor indicates, but at the very least requires an aggressive look at the bottom rung of doctors with the most suits. And that does not appear to be happening.

5 SmokeVanThorn 07.30.08 at 1:30 pm

I note that Lincoln’s last paragraph does not assert that most payouts are for serious negligence – just for serious outcomes.

6 Taylor Lincoln 07.30.08 at 1:54 pm

That was negligence on *my* part, Smoke. Please accept a revision in the final graph so that it reads, “most payouts are for very serious outcomes resulting from doctors’ negligence.”

7 justin 07.30.08 at 2:26 pm

Eric and Taylor miss the point. Ted isn’t saying that the number in the report can be explained by a statistical theory. He’s saying (I believe) that the number is meaningless, and any use of it necessarily indicates either ignorance of statistics or dishonesty.

A normal distribution is the default assumption; if you’re going to cite a statistic that is only meaningful if there is some other kind of distribution, you should explain that. (Ted notes that the distribution might not be normal–higher payouts will probably be concentrated in high risk specialties. Because this decreases the denominator for the statistic, it undercuts the point being made by the report).

8 Ted 07.30.08 at 2:34 pm

This is hardly a “small nit”–an opponent of reform thought the false claim to be the most significant and notable argument in Turkewitz’s article. It’s a jarring statistic, and was at risk of becoming conventional wisdom if someone didn’t point out early that it isn’t true.

Lincoln incorrectly claims that I am trying to “have it both ways” when neither of my statements are inconsistent with one another–I have simply noted that the statistic is indistinguishable from the statistic that would result if malpractice awards were random within individual practice areas, and that Public Citizen has failed to perform the statistical test that would demonstrate that the awards are not random. Lincoln fails to contest this basic point, and simply repeats the original fallacious argument. Are there incompetent doctors out there? Yes, but getting rid of the incompetent doctors isn’t going to solve the problem of competent doctors getting unjustly sued.

Lincoln has no basis to say that “most payouts are for very serious outcomes resulting from doctors’ negligence.” At best he can say that “most payouts are for very serious outcomes resulting from alleged doctors’ negligence.” If, as is alleged by reformers (as well as the leading qualitative studies on the subject), the legal system does a poor job of distinguishing between serious outcomes resulting from doctors’ negligence and serious outcomes resulting from reasonable practice, then the payouts will reflect this randomness.

New York has certainly mismanaged its risk pool — but it did so by charging too little for insurance. The claim that there is not an insurance crisis now because doctors have been systematically undercharged is a non sequitur. The fact remains that the insurance rates are a direct consequence of the cost of defending malpractice allegations. The main effect of the New York mismanagement is that the crisis is happening now instead of ten years ago.

Lincoln and I do agree that there should not be cross-subsidization of the high-risk pool by the low-risk doctors, but that is a problem caused by excessive regulation of the insurance market. If New York had a free market, insurance rates would be somewhat lower, though ob-gyns and neurosurgeons and the like would still have a lot to complain about.

In addition, the report linked here also makes clear that nearly 83% of doctors have never had a payout since the national data bank was started in 1990.

Most doctors are not in the high-risk practices. Nearly every neurosurgeon and ob/gyn has been sued for malpractice. Yes, we can eliminate a lot of malpractice suits and payouts by barring neurosurgeons from practice, but that’s not going to improve the quality of medicine in New York. The problem is that New York’s legal system is deterring practice, rather than malpractice.

9 Matt 07.30.08 at 2:53 pm

Ted is absolutely correct. According to ACOG, at least 75% of ob/gyn’s will be sued at least once in their career. Many if not most of these lawsuits are brought for bad outcomes, not negligence on the part of the doctor. Eliminate the “bad” docs, and you’ll have no one left to deliver babies and perform brain surgery.

10 Eric Turkewitz 07.30.08 at 3:28 pm

The problem is that New York’s legal system is deterring practice, rather than malpractice.

The number of doctors in New York jumped by 16% from 1995 to 2003, an increase greater than our growth in population.

http://tinyurl.com/63kh39

The New York Times reported just last year that while there was a six percent growth in the number of doctors from 2001 to 2005, for a total of about 77,000 doctors. But the way they are spread throughout the state is wildly uneven. The Times wrote:

While newly licensed doctors flock to New York City, Long Island and Westchester County, where there is already a glut, far fewer choose to practice in the vast upstate region.

As the Times article made clear, and as New Yorkers know, upstate has suffered economic woes in past years, much of which was related to the loss of industry. This isn’t a doctor issue. People move to the big city for a multitude of reasons, just as they always have.

If New York’s legal system was deterring doctors, their numbers would not be increasing here at a rate greater than the population at large.

11 Taylor Lincoln 07.30.08 at 3:40 pm

Ted,

I would be interested in seeing the evidence that juries/judges do NOT do a good job determining the merits of cases (“As is alleged by reformers (as well as the leading qualitative studies on the subject), the legal system does a poor job of distinguishing between serious outcomes resulting from doctors’ negligence and serious outcomes resulting from reasonable practice.”)

We have spent considerable effort investigating this question and have found that the academic literature consistently finds the opposite conclusion? Ted, could you post cites for the studies you are referring to or send to me offline?

12 Ted Frank 07.30.08 at 4:19 pm

@9: That’s actually ACOG’s national statistic. In New York, 92% of ob-gyn doctors have been sued at least once.

@10: As the New York Times has documented, much of the growth in doctors in the New York area has come in areas like plastic surgery and other cosmetic work–the provision of luxuries to New York’s growing millionaire class, rather than of needed ER, neurosurgical, and ob/gyn services. In any event, I fail to see why a growth rate from 1995 to 2003 is relevant to an inquiry whether insurance rate increases after 2003 are driving away doctors–especially since, as you correctly argue, insurance rates in the state were artificially low from 1995 to 2003, and failed to reflect the actual costs of malpractice claims.

@11: Brennan et al., “Relation between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation,” 335 NEJM 1963 (Dec. 26, 1996) (litigation system was just as likely to award damages in a case where no medical malpractice has taken place as one where medical malpractice has taken place; sued non-negligent doctors paid more on average to injured patients than the sued negligent doctors; majority of patients receiving compensation weren’t injured by negligence); the more recent Studdert-Mello study found an accuracy rate that was slightly better, but still only 73% (along with the fact that 4 out of 10 malpractice lawsuits are meritless); Caplan RA, Posner KL: The expert witness: Insights from the Closed Claims Project. ASA Newsletter 61(6):9-10, 1997 (expert witness testimony affected by outcome bias); Caplan RA, Posner K, Cheney FW: Effect of outcome on physician judgments of appropriateness of care. JAMA 265:1957-1960, 1991 (same). Cf. also D. Merenstein, ”Winners and Losers”, JAMA. 2004;291:15-16.

13 Ted Frank 07.31.08 at 8:12 am

Eric Turkewitz has a correction on his weblog. Justinian Lane has had time to comment here twice and make a new post on his weblog, but still has not corrected himself, even though his source has. (Lane’s new post also makes up facts, and gets called on it by Bill Childs, but Lane doesn’t admit that, either.)

14 Eric Turkewitz 07.31.08 at 5:17 pm

Ted:

One more thing about the error. Payments made are likely to be far more important than suits filed. That is, of course, because anyone can start a suit and a suit may have multiple defendants (particularly in a hospital setting with many treaters). But a significant payment really doesn’t track that way. It is targeted to the tortfeasor that the insurance company is worried about based on the merits (in settlement situations) or that the jury and appellate review courts deem to be responsible.

In essence, by saying suits instead of payments, I probably shortchanged my own argument on the 4%/50% issue. The fact that so many payments come from such a small crowd makes it easier for investigatory authorities than trying to scan the number of suits.

All this, of course, is beside the main point that the insurance problem was caused by politicians, as the Superintendent of Insurance admits. The burden of fixing the problem should not be borne by the patients by closing the courthouse door on them. And good doctors should not be bearing such a heavy burden due to the bad doctors that cause so much damage.

Since this is your blog, I’ll leave you with the last word should you wish to add more, and we’ll put on the sparring gloves another day when the times comes.

In the meantime, you don’t happen to know a good ice cream lawyer, do you?

Ben & Jerry’s Fear of Lawyers Kills Video Submission

15 Ted Frank 07.31.08 at 7:24 pm

I should add one more study that is especially relevant: Entman (1994) found that prior malpractice experience had no predictive value on the quality of care provided by obstetricians.

Too, Sloan, Whetten-Goldstein, Githens, et al. (1995), found no relationship between birth outcomes and malpractice liability risk — suggesting that that risk can be reduced dramatically without any endangerment of safety in the obstetrical area.

Meanwhile, it’s now two days later, and Justinian Lane still hasn’t corrected his original misstatement.

16 Richard Wright 08.06.08 at 1:28 pm

Empirical studies of medical malpractice claims routinely conclude that there is a severe problem of underclaiming and undercompensation: only about one in ten persons with a valid claim even files a claim. See, e.g., Patricia M. Danzon, Medical Malpractice: Theory, Evidence, and Public Policy ch. 2 (1985); Brian Ostrom et al., What Are Tort Awards Really Like? The Untold Story from the State Courts, 14 Law & Policy 77, 81 (1992); Minnesota Dep’t of Commerce, Medical Malpractice Claim Study, 1982-1987, at 31 (1989).

This result is confirmed by the Harvard study that is the foundation of the NEJM article by Brennan et al that you cite. However, the Harvard study is routinely cited by anti-tort commenters, such as Ted, not for its confirmation of the severe amount of underclaiming and undercompensation, but rather for its finding of supposedly random liability claims and payments. The study concluded that, while at best only one in eight patients with valid claims, based on the medical records, files a claim and only one in sixteen receive compensation from the tort system, only eight of the 47 claims actually filed (which could be matched with hospitalizations in the study sample) had been determined during the study’s medical record review to be negligently caused adverse outcomes. Harvard Medical Practice Study, Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York 7-30 to 7-35, 11-4 to 11-5 (1990).

Apart from the fact that, as the study authors admitted, the sample size was too small to draw any general conclusions about the overall frequency or specific occurrence of invalid claims, the study method was flawed. It was based only on the hospitals’ medical records, and there are obvious reasons for believing – as confirmed by later studies (see below) – that doctors and hospitals often (generally?) will not record adverse events and possible negligence in their medical records. Moreover, the study’s definition of an adverse event employed a (too) high threshold. It was defined as an injury resulting from medical treatment, as opposed to the underlying disease process, that caused a prolonged hospital stay or a disabling injury upon leaving the hospital, which the study admitted “does not encompass all the valid grounds for a malpractice claim.” The study recorded an adverse event as being due to medical negligence only if each of two independent physician reviewers (why only physicians, rather than physician-lawyer pairs?) agreed that such was the case (based only on the hospital’s medical records), or, if the two disagreed, if a third “senior” physician broke the tie in favor of negligent causation. Thus, even though one of the physician reviewers evaluated the case as involving both negligence and causation, it would not be recorded as a negligently caused adverse outcome if the other initial reviewer and the third senior reviewer both found a lack of negligence or a lack of causation. Moreover, “close calls” on the less-likely-than-not (rather than more-likely-than-not) side were recorded as not being negligently caused adverse outcomes. Yet, in the context of medical litigation, there clearly is a plausible, non-frivolous liability claim if even one (independent) physician believes there was negligent causation, especially if he believes this is “more likely than not” to be true, but also even if it is a “close call.” The study also noted that some of the alleged adverse events, especially those involving alleged failure to diagnose properly, may well have not been picked up by its screening methodology. If the claims involving these sorts of issues were all treated as being plausible negligence claims, over half of the filed claims would have been recorded as being valid. See id. at 7-30 to 7-35.

At the time of the Harvard study, few of the filed claims had been closed, so it was not known how many of the claims had actually been pursued, settled, tried, dismissed, or found by a judge or jury to be proven or not proven. The NEJM article provides the followup information. Only one of the claims was resolved by a jury trial, in favor of the defendant (it is not stated how this claim was classified in the initial study). Of 24 closed claims initially classified as involving no adverse event, 10 resulted in a payment to the claimant. Of 13 classified as involving an adverse event but no negligence, 6 resulted in a payment to the claimant. Of 9 initially classified as involving an adverse event and negligence, 5 resulted in a payment to the claimant.

As the followup study notes, the fact that a claim was settled with a payment to the claimant does not establish that it was valid. However, especially for “captive” medical insurance companies operated by physician groups, it is unlikely that claims will be paid absent some minimally plausible argument for negligence, especially given the fact that studies report doctors’ winning with juries 70-90 percent of the time. Erik Moller, Trends in Civil Jury Verdicts Since 1985 at 15-19 (Rand Corporation Report MR-694-ICJ 1996); U.S. Department of Justice, Bureau of Justice Statistics, Special Report: Federal Tort Trials and Verdicts, 1994-95, at 1 (NCJ-165810, Dec. 1997); National Center for State Courts, Examining the Work of State Courts, 1993 at 25; National Center for State Courts, Examining the Work of State Courts, 1994 at 36; U.S. Dep’t of Justice, Bureau of Justice Statistics, Civil Jury Cases and Verdicts in Large Counties 5 (1995); Special Issue: Litigation Dimensions — Torts and Contracts in Large Urban Counties, 19(1) State Ct. J. 24, 32 (1995); Stephen Daniels, Verdicts in Medical Malpractice Cases, Trial, May 1989, at 23; cf. U.S. Department of Justice, Bureau of Justice Statistics, Special Report: Medical Malpractice Insurance Claims in Seven States, 2000-2004 (NCJ-216339, March 2007) (only about one-third of closed insurance claims resulted in a payout to the claimant in three states for which data was available; in the fourth state, Illinois, only 12 percent of closed claims had a payout to the claimant).

Conversely, the fact that a claim was not successfully pursued and legally proven does not imply that it was frivolous rather than a good faith, plausible claim, especially given the major expenses and hurdles imposed on the bringing of such claims by so-called “tort reform.” The authors of the followup study (actually, only one of them) reviewed the actual case files for only twelve of the 46 closed claims. Moreover, the review was once again one-sided: the reviewer looked only at the insurers’ files, not the claimants’ files. Four of these were the cases initially classified as involving negligent adverse events for which no payment was made; they remained so classified after the file review. The other cases were 8 of the 9 cases initially classified as not involving an adverse event or negligence in which a payment of over $25,000 was made; two of these were reclassified as involving a negligent adverse event after the (one-sided) case file review.

As previously noted, studies such as the Harvard study based solely on the medical records will inevitably misclassify many situations as not involving adverse events or negligence. A subsequent study (authorized after the chief surgeon experienced several instances of negligent treatment while a patient in his hospital) was undertaken in which trained observers contemporaneously recorded errors that were discussed by medical personnel during regularly scheduled day-shift weekday clinical meetings in a major urban hospital. Although the observers only attended regularly scheduled weekday (Monday through Friday) day-shift meetings, they found a much higher incidence of medical errors than has generally been assumed or reported: at least one medical error for 45.8% of the 1047 patients studied, and at least one serious adverse outcome (ranging from temporary physical disability to death) caused by medical error for at least 17.7% of the patients. 18.2% of the patients were subject to medical errors the seriousness of which was not discussed. Few of these medical errors were recorded in the medical records. In fact, some physicians admitted they did not include information about errors in the patient’s chart because they wanted to avoid litigation. Only 13 (1.2%) of the patients made liability claims. Eleven of these 13 had been identified by the study as having an adverse event due to medical error. Four years after the statute of limitations for filing suit on the adverse events had ended, only 3 of the 13 claiming patients had received compensation, 8 claims had been dropped, and 2 cases were still pending. Lori D. Andrews, An alternative strategy for studying adverse events in medical care, 349 The Lancet 309, 311-12 (Feb. 1, 1997); Lori D. Andrews, Medical Error and Patient Claiming in a Hospital Setting, American Bar Foundation Working Paper #9316 at 7, 10-11 (1995). The high rate of medical errors is confirmed in Institute of Medicine, To Err is Human (2000).

Studies of actual case files by doctors have found that there are very few instances of frivolous malpractice claims being brought. See, e.g., Mark Taragin et al., The Influence of Standard of Care and Severity of Injury on the Resolution of Medical Malpractice Claims, 117 Annals Int. Med. 780 (1992); Tonn & Associates, Medical and Hospital Professional Liability: A Report Prepared for the Texas Health Policy Task Force (July 1992) (funded by the Texas Hospital Ass’n, the Texas Medical Ass’n, and the Texas Trial Lawyers Ass’n); Neil Vidmar, Medical Malpractice and the American Jury: Confronting the Myths About Jury Incompetence, Deep Pockets, and Outrageous Damage Awards (1995).

17 Ted Frank 08.06.08 at 2:30 pm

Wright leaves a lengthy comment that is largely a non sequitur: in response to my comment listing seven studies demonstrating why the med-mal system does not work, he criticizes one and ignores the other six, instead choosing to focus on a number of other studies having nothing to do with the question presented. I have addressed many of these studies at Overlawyered and Point of Law (for example, the “underclaiming” allegation has the opposite implication for medical malpractice law than Wright implicitly asks us to draw, and the papers on “frivolous” litigation use a technically narrow definition of “frivolous” contrary to its colloquial use in the political context) but Wright does not respond to my analysis of those studies.

I also recommend Richard Anderson’s lengthy critique of the Harvard study, showing that the Harvard study, contrary to Wright’s claim, overstates the amount of malpractice.

18 Richard Wright 08.06.08 at 5:35 pm

As usual, you are quite squirmy and one-sided, Ted. As should have been clear, I was responding to your “@11″ in post 12, in which you cited studies to back up your claim that studies show that “the legal system does a poor job of distinguishing between serious outcomes resulting from doctors’ negligence and serious outcomes resulting from reasonable practice.” You cited five studies, not seven as you claim, the last three of which seem to me from their titles to be less relevant to the specific question posed.

I have only read the first study you cited, the Brennan et al NEJM article, and the Harvard study on which it is based, upon which you and others primarily rely on this issue. I hope to find time to locate and read the other studies you cited, sometime in the not too distant future, especially the Studdert-Mello study (for which you provided no citation). However, given your assertion that the Brennan et al studies support your claim, and your further citation to the Anderson critique of the Harvard study, I do not expect to find sound support for your claim in any of the other studies you cite.

I admit that the severe underclaiming of medical malpractice injuries that the Harvard study (and every other study of which I am aware) documents does indicate a shortcoming of the tort system, at least in terms of efficient deterrence, and to a lesser extent in terms of corrective justice. While it is important from the standpoint of efficient deterrence that all valid claims be brought and successfully prosecuted, from the standpoint of corrective justice it is important only that claimants be able to file and successfully prosecute valid claims if they want to, but they can waive that right, and studies such as the Rand studies show that — contrary to popular perceptions fed by the anti-tort industry — the great majority of claimants do waive that right, except when they suffer serious injuries not covered by insurance for which they believe others are at fault. Unfortunately, it is clear that many claimants do not file or pursue valid medical malpractice claims today, despite a desire to do so, because of the great difficulty and expense of doing so, which has been greatly exacerbated by “tort reforms.”

However, it is not the underclaiming of medical malpractice sufferers that bothers you or other anti-tort advocates, but rather the alleged overclaiming. Yet, rather than responding to my criticisms of the Brennan et al studies upon which you and others principally rely to support the overclaiming argument, you provide a link to Richard Anderson’s critique of the Harvard study and assert that it shows that the Harvard study overstates the amount of malpractice.

It does not. Anderson rather argues that the Harvard study overstates the number of (admitted) adverse events because, although they could be classified as such only if they resulted in a prolongation of hospital stay or a disability upon leaving the hospital, they were “transient injuries (full recovery within a month) or occurred during the final stages of life in which therapeutic misadventures may subtract only hours or days from the life of a dying patient.” These are real injuries, not overstated adverse events. Prolonged stays in hospitals incur very real and high costs for the patient and/or its insurer. It may be true that there is no need to worry, at least from the standpoint of corrective justice, if the great majority of patients decide not to pursue claims even if these supposedly “minor” adverse events were negligently caused; they nevertheless are real adverse events.

More to the point, Anderson claims that the frequency of medical error or negligence is overstated in the Harvard study. (He wrongly describes the study procedure when he asserts that the study’s determinations of negligence were based on an average of the ratings by the two initial reviewers. I described the actual study procedure, which required a concurrence by the two initial reviewers or by one of the initial reviewers and the tie-breaking senior physician, in my initial post above (#16).) Anderson is upset that the finding of negligence was based on the legal “more likely than not” standard rather than some stricter standard. Yet, as I noted above, a stricter standard than the relevant legal standard actually was imposed, by refusing to classify an incident as negligent, even if one physician rated is as such under the “more likely than not” standard, if neither the other initial reviewer or the senior tie-breaker physician agreed. If even just one physician reviewer was willing to rate it as negligent, that is certainly enough to rate it as at least a plausible claim of negligence, worthy of proceeding to a filed claim and even a trial. The resulting understatement of plausible claims of negligence that I noted, which was exacerbated by the exclusion of “close calls,” is confirmed rather than refuted (as Anderson assumes) by the fact that, while at least one of the initial physician reviewers found negligence was more likely than not in 58 percent of all the adverse events, only 28 percent ultimately met the study criteria for negligence.

In the last two paragraphs of my post I discussed or cited several studies directly on point with respect to the question posed, which found much higher rates of medical error than those found in the Harvard study and which also found that the great majority of malpractice claims studied were valid or at least plausible and legitmately contestable, rather than being, as asserted by tort opponents, “frivolous” (in the usually understood sense of “without any plausibility or merit,” which I believe is its “colloquial use in the political context”).

You do what you claim that I have done. Rather than attempting to refute my criticisms of the findings of the Harvard study upon which you rely, you instead cite Anderson’s flawed critique of the findings of that study that you and other tort opponents do not like. Rather than attempting to refute the findings of the other studies that I discuss or cite, which are direcly on point, you instead claim that they “hav[e] nothing to do with the question presented” and that you have addressed many of them elsewhere; the sole link you provide refers to none of them.

I don’t have the time or inclination to futher pursue this argument (or many of your similar posts on other issues), so you will, as usual, get the last word. I suggest readers check out the various studies for themselves.

19 Ted Frank 08.06.08 at 7:16 pm

Professor Wright starts off with an insult, and finishes by harrumphing that he is above actually reading anything I write or the papers I cite. So I won’t waste time responding to him, but note that it is ironic when it is law professors who complain that bloggers are rude.

Incidentally, Brennan, Studdert, Caplan, Caplan, Merenstein, Entman, and Sloan do add up to seven. (Studdert-Mello, whom anyone in the field should be familiar with given the huge burst of publicity it received when it was released with a misleading press release that is frequently cited by plaintiffs’ lawyers who don’t want people to read the actual study, is at 354 NEJM 2024 (May 11, 2006).)

I agree that readers should check out the studies for themselves, including the discussions of them on this blog and Point of Law. But Wright hasn’t cited anything that supports the idea that the legal system does a good job distinguishing good doctors from bad doctors, which is what the discussion was about.

20 Ted Frank 08.08.08 at 2:24 pm

Since the report I cited about 4% of docs being responsible for almost 50% of payouts was issued in 2007, I don’t know how you could have refuted it for three years. All you did was discuss a statistical theory that shows that a random distribution might result in a skewed result.

Because the same misleading statistic has been used in other states, and Public Citizen chose to mislead readers of its report by calculating it for New York.

21 Ted Frank 08.08.08 at 2:24 pm

Welcome readers of Eric Turkewitz’s blog. Not sure why he started you on comment 16 unless he didn’t want you to read comments 8, 12 or 15. I’m disappointed that he’s trying to minimize his error by calling this post a “minor correction” when it pointed out that the most persuasive and jarring statistic in his op-ed was essentially made up.

22 Eric Turkewitz 08.09.08 at 6:36 am

Not sure why he started you on comment 16 unless he didn’t want you to read comments 8, 12 or 15.

Because I had already linked to Overlawyered for the piece and thought the debate in the comments (the type that would never make it into a daily newspaper op-ed but would be of interest to many readers) was worthy of a second link because it was so in depth.

I’m disappointed that he’s trying to minimize his error by calling this post a “minor correction” when it pointed out that the most persuasive and jarring statistic in his op-ed was essentially made up.

You’re no doubt alone in believing that, since:
1. The main focus of the op-ed was the Dept of Insurance screwing things up during the Pataki years; and
2. The error merely shortchanged my own argument, as I’ve already addressed in Comment 14:

Payments made are likely to be far more important than suits filed. That is, of course, because anyone can start a suit and a suit may have multiple defendants (particularly in a hospital setting with many treaters). But a significant payment really doesn’t track that way. It is targeted to the tortfeasor that the insurance company is worried about based on the merits (in settlement situations) or that the jury and appellate review courts deem to be responsible.

In essence, by saying suits instead of payments, I probably shortchanged my own argument on the 4%/50% issue. The fact that so many payments come from such a small crowd makes it easier for investigatory authorities than trying to scan the number of suits.

23 Ted Frank 08.09.08 at 8:59 am

Again, the only blogger to cite your op-ed singled out the one statistic that was made up–and the op-ed still does not have a correction for the made-up statistic.

You repeat the misrepresentation in the comments here by falsely implying that Public Citizen was counting the number of payments rather than the amount of payments. If there are twenty-five doctors, and only five have made malpractice payments, and one made a single payment of $4 million, and four others each made 10 settlements of $100,000, then 4% of the doctors are responsible for 50% of the dollars paid, but it’s clearly not where the problem resides.

24 Eric Turkewitz 08.10.08 at 8:51 pm

You repeat the misrepresentation in the comments here by falsely implying that Public Citizen was counting the number of payments rather than the amount of payments.

Those numbers are about the same. A 2003 Public Citizen study found 7% of the doctors were responsible for 67% of the number of payments. The report found that those same doctors made 69% of the total amount of the payouts. See Figure 3:

New York’s Dangerous and Undisciplined Doctors

If there are twenty-five doctors, and only five have made malpractice payments, and one made a single payment of $4 million, and four others each made 10 settlements of $100,000, then 4% of the doctors are responsible for 50% of the dollars paid, but it’s clearly not where the problem resides.

And you think the Department of Health should focus their investigations on the 20 that made no payments instead of the five that did? That is certainly an interesting philosophy.

Remember this: The fight doesn’t always go to the strongest or the race to the swiftest. But that’s the way to bet.

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