The story of medical malpractice litigation in the United States is the endless struggle to find meaning.
The United States is a litigious society. One out of every 230 Americans is a lawyer, and one out of every eight Americans will be involved in litigation in one way or another and will need a lawyer. There are 40 million lawsuits per year. Between 20,000 and 85,000 are medical malpractice claims. The number of medical malpractice lawsuits is elusive because we are not supposed to know. If we knew, we would react, and rightfully so.
Nevertheless, there are other statistics. For instance, there are 1 million physicians in the United States and 5 percent of them are sued each year for negligence. Therefore, there are 50,000 medical malpractice lawsuits filed per year.
If each doctor has a 5 percent chance per year of being sued, each will be sued once every 20 years. There are roughly 1 billion physician office visits per year. Therefore, the average doctor sees 1,000 patients per year in their offices. Hence, each doctor experiences one medical malpractice lawsuit after every 20,000 office visits. It follows that a doctor has a 0.00005 percent chance of being sued after each office visit. If the doctor sees 20 patients per day, five days per week and 50 weeks per year, that risk is 0.001 percent per day. All these figures are predicated on 50,000 malpractice lawsuits per year, and no other risk factors, like specialty, are included. It also goes without saying that the single most important triggering event is an unfortunate outcome following a medical intervention, and every doctor experiences more than one just as random chance.
In the final analysis, if one out of every 800 lawsuits is for medical malpractice, court dockets are hardly jammed by medical malpractice lawsuits and the risks for a doctor are relatively low. So, what is the big deal?
It is a big deal because it is shocking how many of these 50,000 medical malpractice claims are completely meritless and should never have been filed in the first place. Non-meritorious claims are traditionally dropped. Seventy percent are dropped. Hence, 70 percent, or 35,000 medical malpractice lawsuits, are non-meritorious.
I am an OB/GYN. During my career, I pay approximately $1 million in malpractice insurance premiums to compensate for any medical error for which I am responsible. I do not pay this amount to be protected against a 0.001 percent per day risk of being sued and a 70 percent chance of that lawsuit being frivolous and perhaps even malicious. This costs me roughly $200 per day for malpractice insurance, which I must pass on to patients. Each time I am sued, five times in my career, this is precisely the case. Each time I am sued, there is no malpractice. Doctors dare not go naked. If they do, among other things, they will have no admitting privileges and could not participate with health insurance.
Most doctors do not appreciate the impact malpractice has on them in this way. Any doctors now reading these words will, and from now on, I hope they will think differently. If they must run these risks, they must make clear to their carriers before they are sued that they will be proactive in their defense whenever they are sued. This is the way to find meaning.
This essay is cited in the KevinMD record on medical malpractice.
Howard Smith is an obstetrics-gynecology physician.
