The vast majority of medical malpractice is neither sued nor appropriately compensated


Author Linda T. Kohn, Janet M. Corrigan, and Molla S. Donaldson, Editors;
Title To Err Is Human: Building a Safer Health System
Source Committee on Quality of Health Care in America, Institute of Medicine 


Unique Identifier 91278921
Author Localio AR; Lawthers AG; Brennan TA; Laird NM; Hebert LE; Peterson LM; Newhouse JP; Weiler PC; Hiatt HH
Institution Center for Biostatistics and Epidemiology, Penn State University College of Medicine, Hershey 17033.
Title Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III [see comments]
Source N Engl J Med 1991 Jul 25;325(4): p245-51
ISSN 0028-4793

BACKGROUND AND METHODS. By matching the medical records of a random sample of 31,429 patients hospitalized in New York State in 1984 with statewide data on medical-malpractice claims, we identified patients who had filed claims against physicians and hospitals. These results were then compared with our findings, based on a review of the same medical records, regarding the incidence of injuries to patients caused by medical management (adverse events).
RESULTS. We identified 47 malpractice claims among 30,195 patients' records located on our initial visits to the hospitals, and 4 claims among 580 additional records located during follow-up visits. The overall rate of claims per discharge (weighted) was 0.13 percent (95 percent confidence interval, 0.076 to 0.18 percent). Of the 280 patients who had adverse events caused by medical negligence as defined by the study protocol, 8 filed malpractice claims (weighted rate, 1.53 percent; 95 percent confidence interval, 0 to 3.2 percent). By contrast, our estimate of the statewide ratio of adverse events caused by negligence (27,179) to malpractice claims (3570) is 7.6 to 1. This relative frequency overstates the chances that a negligent adverse event will produce a claim, however, because most of the events for which claims were made in the sample did not meet our definition of adverse events due to negligence.
CONCLUSIONS. Medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care.

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Unique Identifier 20181279
Author Thomas EJ; Studdert DM; Burstin HR; Orav EJ; Zeena T; Williams EJ; Howard KM; Weiler PC; Brennan TA
Institution Department of Medicine, Brigham and Women's Hospital, Boston, Massachusetts, USA. .
Title Incidence and types of adverse events and negligent care in Utah and Colorado [see comments]
Source Med Care 2000 Mar;38(3): p261-71
ISSN 0025-7079

BACKGROUND: The ongoing debate on the incidence and types of iatrogenic injuries in American hospitals has been informed primarily by the Harvard Medical Practice Study, which analyzed hospitalizations in New York in 1984. The generalizability of these findings is unknown and has been questioned by other studies.
OBJECTIVE: We used methods similar to the Harvard Medical Practice Study to estimate the incidence and types of adverse events and negligent adverse events in Utah and Colorado in 1992.
DESIGN AND SUBJECTS: We selected a representative sample of hospitals from Utah and Colorado and then randomly sampled 15,000 nonpsychiatric 1992 discharges. Each record was screened by a trained nurse-reviewer for 1 of 18 criteria associated with adverse events. If > or =1 criteria were present, the record was reviewed by a trained physician to determine whether an adverse event or negligent adverse event occurred and to classify the type of adverse event.
MEASURES: The measures were adverse events and negligent adverse events.
RESULTS: Adverse events occurred in 2.9+/-0.2% (mean+/-SD) of hospitalizations in each state. In Utah, 32.6+/-4% of adverse events were due to negligence; in Colorado, 27.4+/-2.4%. Death occurred in 6.6+/-1.2% of adverse events and 8.8+/-2.5% of negligent adverse events. Operative adverse events comprised 44.9% of all adverse events; 16.9% were negligent, and 16.6% resulted in permanent disability. Adverse drug events were the leading cause of nonoperative adverse events (19.3% of all adverse events; 35.1% were negligent, and 9.7% caused permanent disability). Most adverse events were attributed to surgeons (46.1%, 22.3% negligent) and internists (23.2%, 44.9% negligent).
CONCLUSIONS: The incidence and types of adverse events in Utah and Colorado in 1992 were similar to those in New York State in 1984. Iatrogenic injury continues to be a significant public health problem. Improving systems of surgical care and drug delivery could substantially reduce the burden of iatrogenic injury.

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Unique Identifier 20181278
Author Studdert DM; Thomas EJ; Burstin HR; Zbar BI; Orav EJ; Brennan TA
Institution Department of Health Policy and Management, Harvard School of Public Health, Brigham and Women's Hospital, Boston, Massachusetts, USA. .
Title Negligent care and malpractice claiming behavior in Utah and Colorado [see comments]
Source Med Care 2000 Mar;38(3): p250-60
ISSN 0025-7079

BACKGROUND: Previous studies relating the incidence of negligent medical care to malpractice lawsuits in the United States may not be generalizable. These studies are based on data from 2 of the most populous states (California and New York), collected more than a decade ago, during volatile periods in the history of malpractice litigation.
OBJECTIVES: The study objectives were (1) to calculate how frequently negligent and nonnegligent management of patients in Utah and Colorado in 1992 led to malpractice claims and (2) to understand the characteristics of victims of negligent care who do not or cannot obtain compensation for their injuries from the medical malpractice system.
DESIGN: We linked medical malpractice claims data from Utah and Colorado with clinical data from a review of 14,700 medical records. We then analyzed characteristics of claimants and nonclaimants using evidence from their medical records about whether they had experienced a negligent adverse event.
MEASURES: The study measures were negligent adverse events and medical malpractice claims.
RESULTS: Eighteen patients from our study sample filed claims: 14 were made in the absence of discernible negligence and 10 were made in the absence of any adverse event. Of the patients who suffered negligent injury in our study sample, 97% did not sue. Compared with patients who did sue for negligence occurring in 1992, these nonclaimants were more likely to be Medicare recipients (odds ratio [OR], 3.5; 95% CI [CI], 1.3 to 9.6), Medicaid recipients (OR, 3.6; 95% CI, 1.4 to 9.0), > or =75 years of age (OR, 7.0; 95% CI, 1.7 to 29.6), and low income earners (OR, 1.9; 95% CI, 0.9 to 4.2) and to have suffered minor disability as a result of their injury (OR, 6.3; 95% CI, 2.7 to 14.9).
CONCLUSIONS: The poor correlation between medical negligence and malpractice claims that was present in New York in 1984 is also present in Utah and Colorado in 1992. Paradoxically, the incidence of negligent adverse events exceeds the incidence of malpractice claims but when a physician is sued, there is a high probability that it will be for rendering nonnegligent care. The elderly and the poor are particularly likely to be among those who suffer negligence and do not sue, perhaps because their socioeconomic status inhibits opportunities to secure legal representation.

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Unique Identifier 99413807
Author Edbril SD; Lagasse RS
Institution Department of Anesthesiology, Montefiore Medical Center/Albert Einstein College of Medicine, Bronx, New York 10467-2490, USA.
Title Relationship between malpractice litigation and human errors [see comments]
Source Anesthesiology 1999 Sep;91(3): p848-55
ISSN 0003-3022
In summary, a considerable amount of anesthesia malpractice litigation appears groundless. Practitioners are placed at risk for litigation, and plaintiffs can receive awards in the absence of negligence. Likewise, patients who are the victim of deviations from the standard of care resulting in disabling injuries are often not compensated by our legal system. If peer review could aid the legal system as a means of detecting deviations from the standard of care it would offer the advantages of being more applicable to judging clinical competence and more justifiable in compensating injured patients. Also, deviations from the standard of care, as determined by peer review, represent a stable process and, therefore, these occurrences are predictable in terms of frequency and cost.

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Author Brennan TA, Sox CM, Burstin HR
Institution Department of Health Policy and Management, Harvard School of Public Health, Boston, MA 02115, USA.
Title Relation between negligent adverse events and the outcomes of medical-malpractice litigation.
Source N Engl J Med 1996 Dec 26;335(26):1963-7
BACKGROUND: We have previously shown that in New York State the initiation of malpractice suits correlates poorly with the actual occurrence of adverse events (injuries resulting from medical treatment) and negligence. There is little information on the outcome of such lawsuits, however. To assess the ability of malpractice litigation to make accurate determinations, we studied 51 malpractice suits to identify factors that predict payment to plaintiffs.
METHODS: Among malpractice claims that we reviewed independently in an earlier study, we identified 51 litigated claims and followed them over a 10-year period to determine whether the malpractice insurer had closed the case. We obtained detailed summaries of the cases from the insurers and reviewed the litigation files if the outcome of a case differed from the outcome predicted in our original review.
RESULTS: Of the 51 malpractice cases, 46 had been closed as of December 31, 1995. Among these cases, 10 of 24 that we originally identified as involving no adverse event were settled for the plaintiffs (mean payment, $28,760), as were 6 of 13 cases classified as involving adverse events but no negligence (mean payment, $98,192) and 5 of 9 cases in which adverse events due to negligence were found in our assessment (mean payment, $66,944). Seven of eight claims involving permanent disability were settled for the plaintiffs (mean payment, $201,250). In a multivariate analysis, disability (permanent vs. temporary or none) was the only significant predictor of payment (P=0.03). There was no association between the occurrence of an adverse event due to negligence (P = 0.32) or an adverse event of any type (P=0.79) and payment.

CONCLUSIONS: Among the malpractice claims we studied, the severity of the patient's disability, not the occurrence of an adverse event or an adverse event due to negligence, was predictive of payment to the plaintiff.

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Author Ruth Ellen Smalley
Title Comment, Will A Lawsuit A Day Keep the Cyberdocs Away? Modern Theories of Medical Malpractice as Applied to Cybermedicine
Source 7 RICH. J.L. & TECH. 29 (Winter 2001)
Since its inception, the Internet has revolutionized the way people communicate and access information. The Internet has served as a stomping ground for technological pioneers and as a battleground for those combating its misuse. The introduction of cybermedicine has prompted increased discussion of issues such as information availability, consumer responsibility, and legal liability. While no malpractice case involving cybermedicine has come before a court, the likelihood of such a case presenting itself in the near future is high. Courts will have traditional theories of medical malpractice and caselaw concerning telemedicine to serve as guides through this unchartered territory, but how courts will choose to apply these tools has been the topic of heated debate among legal scholars. For now, web surfers and cyberdoctors are left guessing as to what the future holds for online medicine. The possible solutions to this quandary are as infinite as cyberspace tself.
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Copyright 2009 Electronic Handbook of Legal Medicine