The Wilson Quarterly

It's a common enough headache for American doctors: Treat a patient using a routine procedure, but instead of getting a check in the mail, get served legal papers. To add insult to injury, much of the cost and conflict of malpractice litigation is unnecessary. A surprising number of cases “simply disappear, as plaintiffs abandon them,” writes Dwight Golann, a professor at Suffolk University Law School, in Boston. Golann studied 2,094 malpractice cases in Massachusetts that closed between 2006 and 2010. Almost half—46 percent—were dropped by the plaintiff. (The remainder resulted in a settlement or went to court.)

There are plenty of checks in the state’s system that should prevent frivolous complaints from going forward, including a mandatory viability review by a screening tribunal. Medical malpractice attorneys and insurance claim managers Golann interviewed said that the primary reason so many cases are dropped is simple: During the legal process, plaintiffs uncover information about their treatment that makes them re-evaluate the merits of their claim. A patient may discover, for instance, that one step in a complex procedure he thought his doctors had skipped was just not recorded, leaving him with an inaccurate perception of the treatment he received. The length of legal proceedings—2.75 years, on average, for dropped cases—leaves plenty of time for such information to come to light.

The costs of dropped cases are consequential: Insurers in Golann’s sample spent an average of $44,200 on each dropped case in 2010. These costs are passed on to medical providers and, eventually, patients through such mechanisms as higher insurance premiums.

Remedies are available, Golann says. A University of Michigan Health System initiative that made a cornerstone of quickly and aggressively investigating malpractice claims saw the number of malpractice cases filed within its system dip by 36 percent, case resolution times shrink by 30 percent, and case expenses, including payments offered by insurers, drop by 44 percent.

Lawyers for both plaintiffs and the defense should take a cue from Michigan and disclose information at the outset instead of waiting for it to be unearthed during the costly discovery process, Golann says. And when a claim is found to have validity, the defense should offer a good-faith settlement in a timely manner. Medical malpractice litigation still won’t be a walk in the park, but it should cause fewer headaches.

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The Source: "Dropped Medical Malpractice Claims: Their Surprising Frequency, Apparent Causes, and Potential Remedies" by Dwight Golann, in Health Affairs, July 2011. 

Photo courtesy of Flickr/Adrian Clark

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