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.
"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
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
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
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
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