Most medical malpractice claims are not won or lost in court, or settled. Instead, they disappear, abandoned by the plaintiffs who bring them.
A study of 3,605 malpractice claims closed in Massachusetts between 2006 and 2010 showed that in 45.4 percent of malpractice cases and 56.8 percent of claims against individual doctors, plaintiffs eventually dropped the case or claim without a decision or recovery. This did not occur, however, until defendants had incurred defense costs of more than $25,000 per claim and $44,000 per case; there was also significant stress and other non-monetary costs for both patients and doctors. Defense costs escalated rapidly between the second and fourth year a claim was pending; abandoned claims in the study were pending for an average of 2.7 years before being closed.
Most of the abandoned malpractice claims in the study were not frivolous. Sixty percent of abandoned claims had gone through the state’s medical malpractice tribunal, and of those 27 percent were rejected as inadequately supported.
The study included interviews of plaintiff lawyers, which show numerous reasons for plaintiffs’ decisions to abandon a claim. The most common is that malpractice cases are complex and their validity is therefore difficult to ascertain before discovery processes occur. Unfortunately the legal system is adversarial and inefficient, with both plaintiffs and defendants commonly withholding information and avoiding serious discussion about settlement, often for years.
The article argues that patients and doctors have a joint interest in finding a better process, and notes that there are models for how this could be done. One is the Toro Company, maker of power tools, which reformed its claims process and realized large savings as a result. The University of Michigan hospital system has taken a similar approach to allegations of medical malpractice. It investigates adverse outcomes, explains its findings to patients and their lawyers, commits to using what it has learned to improve patient care and, when appropriate, offers fair compensation.
Traditionally insurers have expressed concern that if the litigation process is streamlined plaintiffs will assert more weak claims. In fact after the University of Michigan changed its approach its malpractice cases declined by 36 percent, and the average cost of resolving a case dropped 44 percent, from $410,000 to $228,000. Some of this improvement was likely due to the fact that the Michigan program improved its quality of care as well as changing how it handled claims.
The article suggests that plaintiff malpractice specialists, who accounted for a large proportion of the abandoned claims in the study, work with insurers and hospitals to develop ways to exchange information and discuss settlement efficiently. Such reforms would substantially reduce the frequency and duration of dropped claims and substantially reduce the cost of medical malpractice litigation.