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EASY LAWSUITS MAKE BAD MEDICINE

Forbes, April 21, 1997, at 166.

By Peter Huber

Copyright 1997 by Peter Huber. Electronic copies of this document may be distributed freely, provided that this notice accompanies all copies.

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"PETER, HERE ARE SOME STONES and the keys to your new glass house," writes Howard F. Twiggs, Esq., president of the Association of Trial Lawyers of America.

Twiggs did not like my Jan. 27 column ("Rx: Radical Lawyerectomy"). He dismisses as "junk science" the subject of that column -- a study of defensive medicine conducted by two Stanford University professors. Litigation, he suggests, does not really cause defensive medicine after all.

Who knows, perhaps he's right. I'll certainly read his analysis with an open mind when he writes it up and publishes it in a serious journal. The Quarterly Journal of Economics might do -- that's where the Stanford study appeared. I suspect I'll have a long wait.

My column mentioned a second study: a 1990 Harvard Medical School study about medical malpractice. Trial lawyers like Twiggs quote that one quite often, though almost never accurately. By coincidence, several of the authors of the Harvard study published a follow-up analysis in the New England Journal of Medicine as my January column was going to press.

Their 1990 analysis examined the treatment of 30,000-plus New York patients and the tort claims they filed in 1984. The follow-up study completes their statistical analysis of what the doctors did, what happened to patients, who collected how much and how everything correlated with race, age, income, physician's specialty and other variables. Here's what they found:

1. More than 98% of patients given substandard treatment didn't sue. Many of those, however, suffered no harm at all or only trivial harm.

2. More than 97% of patients who received substandard treatment and who suffered an "adverse event" -- any injury resulting from medical treatment -- didn't sue, either.

3. Patients with high incomes are more likely to file malpractice claims, and more likely to collect, than poorer patients.

4. More than 80% of people who did sue had not received substandard treatment.

5. Almost 20% of the suits filed didn't even involve any adverse event. These 1984 claims were nevertheless settled for an average payment of just under $ 29,000.

6. Half the cases involving adverse events but no negligence were bought off, too, for an average payment of $ 98,000.

7. "Neither the presence of an adverse event nor that of an adverse event due to negligence was associated with the outcome of the litigation."

8. The one factor that did correlate with how much the litigant collected was how severely he was disabled. In cases involving permanent disability, the mean payment was more than $ 200,000.

9. "The real test of the use of negligence as a criterion in litigation is its ability to prevent unsafe medical practices, an issue very difficult to address through research. Overall, empirical evidence does not strongly support using the negligence standard to prevent medical injury."

10. "Our results call into question why the U.S. tort system persists in making determinations of negligence when compensation for medical injury is being considered. If the permanence of a disability, not the fact of negligence, is the reason for compensation, the determination of negligence may be an expensive sideshow. It may pollute the compensation process by creating an adversarial atmosphere and may interfere with quality-improvement efforts."

Lawsuits, in short, do address negligence. Adverse events, too. The people who bring most of the suits are negligent. The adverse events are suffered mostly by the people they sue. For that second kind of adversity, however, lawyers offer no cure.

As I argued in January, the Stanford study suggests that Congress could trim tens of billions from the Medicare budget by placing some sensible limits on suits against doctors who treat patients on the government's tab. The Harvard study makes clear that curtailing lawsuits would make life fairer, too. The vast majority of people with legitimate claims get no benefit from the system at all. The vast majority of people who do benefit from it have no legitimate claim. And, lest we forget, most of the take from this taxpayer-subsidized racket goes to the legal keepers of the adversarial system.


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