Thursday, May 11, 2006

Medmal: spinning by the AP?

Discussing a Harvard study which appears in the May 11, 2006 issue of the New England Journal of Medicine, the AP reports: About 40 percent of the medical malpractice cases filed in the United States are groundless, according to a Harvard analysis of the hotly debated issue that pits trial lawyers against doctors, with lawmakers in the middle. However, Reuters put a different spin on the SAME story: People who file lawsuits against doctors accusing them of medical mistakes rarely do so frivolously, and those who file trivial claims generally receive no payout, researchers at Harvard University found.

Although the AP states: Many of the lawsuits analyzed contained no evidence that a medical error was committed or that the patient suffered any injury, the researchers reported, the AP never mentions the presence of "affidavit of merit" states, such as New Jersey, wherein one's medmal case is dismissed unless a doctor, having the specialization of the accused, gives an affidavit asserting there is reasonable probabillity of medical error and gives reasons therefore.

Curiously, the AP gives a quote from the study author, giving support to the present legal system: The study's lead researcher, David Studdert of the Harvard School of Public Health, said the findings challenge the view among tort reform supporters that the legal system is riddled with frivolous claims that lead to exorbitant payouts. "We found the system did reasonably well in sorting the good claims from the bad ones, but there were problems," he said.

The AP further noted:

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.

Altogether, the Harvard researchers reviewed 1,452 malpractice claims randomly selected from five insurance companies. The cases were resolved — meaning they ended in a verdict, a settlement or a dismissal — between 1984 and 2004. The claims resulted in a combined $449 million in verdicts and settlements.

The researchers examined medical records, depositions and court transcripts to determine if the patients were injured and whether the injury was due to a medical error.

In one instance, a young woman with no family history of breast cancer underwent routine breast exams for four years and came back with a clean bill of health. But doctors later found she had breast cancer that had spread to other parts of the body.The researchers determined the case did not involve medical error because proper procedures were followed. The woman filed a malpractice claim and received an undisclosed settlement.


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