Compensation Payments in Medical Malpractice Litigation

In the current debate over tort reform, critics of the medical malpractice system charge that frivolous litigation — claims that lack evidence of injury, substandard care, or both — is common and costly.

Methods Trained physicians reviewed a random sample of  closed malpractice claims from liability insurers to determine whether a medical injury had occurred and, if so, whether it was due to medical error. We analyzed the prevalence, characteristics, litigation outcomes, and costs of claims that lacked evidence of error.

Results For 3% of the claims, there were no verifiable medical injuries, and 37%t did not involve errors. Most of the claims, 72%, that were not associated with errors or injuries and 84% did not result in compensation; most that involved injuries due to error did, 73%. Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy — nonpayment of claims associated with errors. When claims not involving errors were compensated, payments were significantly lower on average than were payments for claims involving errors. Overall, claims not involving errors accounted for 13-16% of the system's total monetary costs. 

Conclusions Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.