97% of Malpractice Suits Have A Factual Basis

The New England Journal of Medicine recently published a study on medical malpractice cases.  Most media outlets are running it with a headline along the lines of "40% of medical malpractice cases are groundless."  Depending upon your opinion of the justice system, that statistic is proof that the justice system works, or is horribly broken.  But the media got it wrong.

Law.com reports:

"The study found 3 percent of claims analyzed were filed by patients who had no injury. Of the claims that involved injuries, two-thirds were caused by medical error. But the remaining injury claims, or 37 percent, lacked evidence of a medical mistake, and most of those -- 72 percent -- were thrown out or otherwise resolved without a payout to the patient. "

The passage above actually shows that only 3% of medical malpractice claims were groundless - cases in which no actual injury occurred.  In 97% of malpractice cases, an actual injury occurred.  The remaining question is whether malpractice was the cause of those injuries.  As it turns out, in 37% of cases, a judge or jury decided the answer was no. 

If you believe that because 37% of malpractice cases end in the equivalent of a "not guilty" verdict that the civil justice system is broken, then you should also come to the conclusion that the criminal justice system is broken, too.  In California, 32.5% of criminal prosecutions result in a "not guilty" verdict.  In San Francisco, a whopping 62% of prosecutions end in acquittal!

Do either of those statistics mean that prosecutors are flooding the California courts with frivolous prosecutions?  No.  For the same reason, a finding that in 37% of malpractice cases no malpractice occured (but injuries did) isn't evidence that the courts are flooded with frivolous malpractice cases.

One statistic of the study does reveal a gigantic flaw in our civil justice system: 27% of victims of genuine malpractice received no compensation.  That statistic is truly abhorrent.  Imagine if juries in criminal cases found 27% of defendants to be guilty of the crime they were charged with... and then imposed no sentence whatsoever.

It's shameful that no legislator will have the backbone to use this study to truly reform the civil justice system by imposing minimum judgments against defendants who juries found to have committed malpractice.