In a study published in The New England Journal of Medicine in 2006, it was observed that previous studies had shown that the great majority of patients who sustained a medical injury as a result of medical negligence did not file a claim. In reviewing a random sample of closed medical malpractice claims provided by some insurance companies, it was found that only 3% of the claims were based on no verifiable medical injuries and that most of the claims not associated with medical errors or injuries did not result in compensation being paid. Significantly, the refusal to pay claims due to medical errors was more frequent than the payment of claims that did not involve medical errors – one in six claims involving verifiable medical errors did not result in compensation being paid. Claims involving medical errors accounted for 78% of the total defense costs.
Most medical malpractice claims due to verifiable medical errors received compensation whereas most claims that did not involve verifiable medical errors did not receive compensation.
Plaintiffs won at trial only 21% of the time whereas plaintiffs prevailed 61% of the time for claims resolved out of court (claims in which medical errors were not identified were more than twice as likely to go to trial than claims involving verifiable medical errors). Claims that did not involve verifiable medical errors were only one third as likely to result in compensation, and when compensation was paid, the compensation averaged 60% of the compensation paid for verifiable medical errors claims, whether resolved out of court or as a result of trial. The costs associated with defending the claims resolved by trial were nearly three times the defense costs of claims resolved without a trial.
One explanation for medical malpractice claims being filed without verifiable medical errors identified at the time of filing is that it is sometimes difficult to determine before filing a claim whether what happened involved medical errors or whether medical errors resulted in injuries to the claimants. During the discovery process of litigation (when the parties share information and documents) the parties typically find out much more information regarding the events and their results .
The study concludes that the perception that the medical malpractice claims system is overwhelmed by frivolous litigation is overblown; that the system works reasonably well by separating out claims that do not involve medical malpractice errors from those that do and by compensating those who were subjected to verifiable medical errors; and, that even if efforts to limit frivolous litigation by so-called tort reform were successful, such efforts would have a limited effect on the claims brought and the costs associated with the claims (the vast majority of the money spent goes toward resolving and paying claims based on verifiable medical errors).
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