Facts and Myths About Medical Malpractice

Medical Malpractice Myths

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MYTH
Most medical malpractice lawsuits are frivolous.

On average, 97 percent of medical negligence claims have merit. Researchers at the Harvard School of Public Health examined over 1,400 closed medical negligence claims and found that 97 percent were meritorious. Of those 1,400 claims, 80 percent involved death or serious injury. The study concluded that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

Myth
Greedy, ambulance-chasing lawyers are behind most medical malpractice lawsuits.

Medical malpractice attorneys reject 80 percent or more of the requests for representation they receive. A study of medical malpractice plaintiffs’ attorneys in Wisconsin showed that 80 percent of contacts requesting representation were declined. Another study showed that only one in 30 requests for representation led to lawsuits, translating to a 97 percent rejection rate.

Myth
Medical malpractice lawsuits don’t target dangerous doctors.

On average, just 6 percent of doctors are responsible for nearly 60 percent of all malpractice payments. From 1991 to 2005, just 5.9 percent of doctors were responsible for 57.8 percent of all malpractice payments. Of the 5.9 percent, each doctor was found liable twice, while 2.3 percent were found liable three times, and 1.1 percent were found liable four times.

MYTH
Medical malpractice lawsuits far outweigh the actual occurrence of medical malpractice.

Only one in eight people injured by medical negligence file a malpractice claim. According to the Institute of Medicine, 98,000 patients die each year as a result of preventable medical errors, and hundreds of thousands more suffer non-fatal injuries. Despite the massive number of medical injuries, medical malpractice lawsuits are uncommon, constituting only three percent of the civil tort caseload.

Myth
Most medical malpractice lawsuits are for minor injuries.

At least 80 percent of medical malpractice lawsuits involve death or serious injury. A Harvard study has shown that a majority of medical negligence claims involve death, serious, or significant injury. Fatalities were involved in 26 percent of cases, major physical injuries were involved in 15 percent, and significant physical injuries were involved in 39 percent. Meanwhile, only 3 percent of closed medical negligence claims didn’t involve an adverse injury.

Myth
Most incidents of medical malpractice can’t be prevented.

Nearly 98,000 people die each year as a result of entirely preventable medical errors. While some patients are injured or die in the course of care despite doctors utilizing best practices, most medical malpractice incidents are a direct result of preventable errors. The worst examples of easily preventable errors are wrong-site surgeries, which some studies claim occur at least 40 times each week in American hospitals. Despite the staggering amount of patients injured by wrong-site surgeries, only one-third result in a lawsuit.

MYTH
The motivation for filing medical malpractice lawsuits is money.

Medical negligence payouts have dropped more than 50 percent. The National Association of Insurance Commissioners found that medical negligence payouts dropped over 50 percent between 2003 and 2008. Meanwhile, Harvard researchers acknowledge that many injured patients are motivated to file a claim to discover what went wrong in the course of their treatment. Because most doctors and healthcare providers aren’t forthcoming with information when an error occurs, injured patients are forced to file a claim to obtain information.

Myth
Most medical malpractice lawsuits are filed by poor patients trying to make a buck.

Studies have shown that poor, uninsured, and Medicaid patients are less likely to sue than other patients. A study of 51 New York hospitals showed that poor and uninsured patients are significantly less likely to sue for malpractice.

Myth
Juries are awarding outrageous verdicts for medical malpractice lawsuits.

No more than one-half of one percent of malpractice payments resulted in an award of $1 million or more, and judge or jury awards account for only 5 percent of all medical malpractice dollars. In 2005, the average award for a significant permanent injury was $215,000, while the average award for a major permanent injury was $315,000. The median award for cases where the patient was rendered a quadriplegic, brain damaged, or in need of lifelong care was $635,000, and the award average for a patient’s death was only $195,000.From 1991 to 2003, the average size of trial awards grew only 3.4 percent. A RAND study looked at the growth in malpractice awards between 1960 and 1999 and found that real average awards have grown by less than real income.

MYTH
Special health courts should handle medical malpractice lawsuits because juries are biased against doctors and hospitals.

In medical malpractice cases, juries overwhelmingly favor defendants. A 2001 study showed that plaintiffs in medical malpractice cases won only 27 percent of cases, while a 2006 study found plaintiffs winning only 21 percent of the time.

Myth
There are more medical malpractice lawsuits now than ever before.

The number of medical negligence filings has steadily declined in the last decade. The number of medical negligence filings dropped eight percent between 1997 and 2006. According to the National Center for State Courts, tort cases comprise only six percent of the civil caseload, with medical negligence claims accounts for just three percent of the tort subsection.

Myth
Frivolous medical malpractice cases are clogging our court system.

A Harvard study found that 236 of 1,452 medical malpractice lawsuits were dismissed despite clear evidence of injury and error. Harvard researchers who studied 1,452 medical malpractice lawsuits found American courts were efficient in dismissing baseless suits. Of the total cases, 236 cases were thrown out of court despite evidence of injury and error. Of the cases where treatment resulted in an injury but evidence of error was uncertain, only 145 of 515 resulted in compensation. Only six of the lawsuits studied, or 0.004 percent, resulted in compensation without detection of an injury. The remaining 1,050 cases were found to have been decided correctly.

 

MYTH
Medical malpractice lawsuits are driving up healthcare costs for all of us.

Medical negligence compensation accounts for only 0.3 percent of national healthcare costs. According to the National Association of Insurance Commissioners, the total amount spent defending medical malpractice claims and compensating victims is $7.1 billion – just 0.3 percent of America’s $2.2 trillion in healthcare spending. Meanwhile, the real driver of healthcare costs are preventable medical errors, which are responsible for an additional – and unnecessary – cost of $29 billion annually.

Myth
Tort reform will stop doctors from practicing “defensive medicine” and reduce healthcare costs.

Defensive medicine is less prevalent than suggested and there are little savings to be gained from targeting it. The vast majority of academic and government research has found that targeting indirect costs, such as defensive medicine, offer little savings. Also, much of what is considered defensive medicine is motivated by the desire to generate more income rather than a fear of litigation.

Myth
Medical malpractice litigation is forcing doctors to stop practicing.

In the past decade, the number of practicing physicians has steadily increased and is currently at an all-time high. In 2007, a study found that the number of physicians per 100,000 people is at an all-time high of 307, outpacing population growth. From 2006 to 2007 alone, the nation saw an increase of 20,000 physicians.

 

MYTH
Medical malpractice is driving physicians out of my state in favor of those with damage caps.

The number of physicians in every state has increased, and there are actually more doctors in states without damage caps. In the vast majority of states, the increase in physicians has either matched or outpaced population growth. Capping non-economic damages does not help states attract or keep physicians. The number of physicians is significantly higher in states without caps than in those that cap damages.

Myth
Medical malpractice claims drive up doctors’ premiums.

There is little correlation between medical malpractice claims and medical malpractice premiums. Instead, premiums rates are driven almost entirely by insurance trends. The National Bureau of Economic Research has found that “increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums.” Meanwhile, American for Insurance Reform found that “rate increases were rather driven by the economic cycle of the insurance industry, driven by declining interest rates and investments.” Finally, on average, doctors spend less on malpractice insurance – just 3.2 percent of their revenue – than they do on rent.

Myth
Damage caps will lower insurance rates.

The average liability premium is higher in states with damage caps than those without. With damages capped, insurance companies pay out less money towards awards, but they don’t pass those savings along to doctors in the form of lower premiums. The strongest example of this is Texas, which passed a restrictive damages cap in 2003. Following the cap, the nation’s largest medical malpractice insurer – GE Medical Protective – told the Texas Insurance Commissioner that caps had a negligible impact on rates and announced a 19 percent increase in doctors’ premiums. In its filing, GE Medical Protective acknowledged that “non-economic damages are a small percentage of losses paid. Capping non-economic damages will show loss savings of 1.0 percent.” Even the president of the American Insurance Association has said that “We have not promised price reductions with tort reform.”

 

Medical Malpractice Facts
FACT
The proportion of medical errors – 98,000 annually – to resulting disciplinary actions – less than one-half of one percent – is dangerously skewed.

Annually, less than one-half of one percent of America’s doctors face serious state sanctions. In 1999, state medical boards imposed fewer than 3,000 serious disciplinary actions. Compared to the estimated 98,000 patients killed each year by medical errors, very few doctors are penalized by medical boards for dangerous or negligent practices.

FACT
A majority of medical malpractice can be attributed to the same pool of negligent doctors, and a majority of them are never disciplined.

A 1990 study by the National Practitioner Data Bank found that just 5.1 percent of doctors account for more than half of all medical malpractice payouts. Of the 35,000 doctors who had two or more malpractice payouts, only 7.6 percent of them were disciplined. More strikingly, only 13 percent of doctors with five medical malpractice payouts have ever been disciplined.

FACT
Medical malpractice claims have steadily declined over the years.

According to the National Association of Insurance Commissioners, the number of new medical malpractice claims declined by about four percent between 1995 and 2000. A Harvard study also found that only one in eight preventable medical errors result in a malpractice claim.

FACT
The amount spent on medical costs has increased, but the amount spent on medical malpractice insurance hasn’t kept pace.

Since 1987, medical costs have increased by 113 percent, while the amount spent on medical malpractice insurance has increased by just 52 percent over the same period of time.

FACT
Medical errors cost more than medical malpractice insurance.

The Institute of Medicine estimates the annual health care costs of medical errors in hospitals at $17 to $29 billion. Meanwhile, the National Association of Insurance Commissioners estimates the total amount spent on medical malpractice insurance was $6.4 billion – at least three to five times less than medical malpractice costs.

FACT
The size of medical malpractice damage awards has remained steady since 1991.

Over ten years, medical malpractice payouts have grown an average of 6.2 percent per year, which almost exactly matches the rate of medical inflation. In 2001, only 895 out of 16,676 payouts – or about 5 percent – topped $1 million.

FACT
Premium rates for medical malpractice insurance do not track losses paid in damages.

Insurance rates for doctors are dictated by the state of the economy, not the amount of medical malpractice payouts. Wen the economy is booming and investment returns are high, companies maintain premiums at modest levels. However, when the economy falters and interest rates fall, companies increase premiums in response.

FACT
An overwhelming majority of medical malpractice claims are in response to permanent, irreversible injury or death.

In 75 of the nation’s largest counties, 90 percent of all medical malpractice claims involved permanent injury and death.

FACT
The average American doctor has only a 7.4 percent chance of being sued this year and only a 20 percent chance of being found negligent.

The New England Journal of Medicine found that only one in 14 doctors are sued annually. The same study also found that only about 20 percent of malpractice claims result in a payout.