Why Malpractice Claims Take Forever To Be Resolved | Guest Blog

Since defense lawyers are paid according to their billable hours, it seems to me that it is in their best interest to make a claim last as long as possible.

Two recent papers have prompted me to ask myself the question, “Why do malpractice suits take so long to be resolved?”

One was by a group from Harvard, USC and the RAND Corporation. They looked at more than 10,000 closed malpractice cases for all specialties and found the average length of time it took to close a case was 19 months, with litigated claims taking a little over twice as long as non-litigated claims, 25.1 vs. 11.6 months respectively. Claims that were resolved at trial took much longer, averaging 39.0 months for defendant verdicts and 43.5 months for plaintiff verdicts.

The second study was by a group headed by a surgeon based at a Johns Hopkins affiliated hospital. They reviewed 187 closed surgery claims at four university hospitals in New York. Using a different method of calculating the length of time, they noted a mean time until resolution of all claims of 4.5 years. Cases closed with no payment took 3.9 years, while those won or lost at trial took about 5 years.

I’ll give you a minute to see if you can guess why it takes so long to resolve these claims.

Here’s my theory. I think it might have something to do with the involvement of lawyers. We all know that plaintiffs’ attorneys get a large percentage of the take from any case settled with payment or plaintiff’s verdict with damages.

But defending cases can be expensive too. Since defense lawyers are paid according to their billable hours, it seems to me that it is in their best interest to make a claim last as long as possible. Have you ever been deposed or read a deposition? Lawyers object to every other question, which accomplishes nothing. The question still has to be answered. They also ask the same questions over and over leading to the old “Objection, asked and answered” response. Often the questions seem to have nothing to do with the alleged negligence.

Let’s do some math.

A paper that appeared in the journal Health Affairs in 2005 addressed the legal costs associated with malpractice claims. The study found that “legal costs average $27,000 per claim in the United States, which adds approximately $1.4 billion in costs to the $4.4 billion paid in settlements and judgments. The costs of underwriting insurance against malpractice claims are estimated at an additional 12%, or $700 million. The cost of defending U.S. malpractice claims, including awards, legal costs, and underwriting costs, was an estimated $6.5 billion in 2001—0.46% of total health spending.”

Yes, it’s less than 1% of total healthcare spending. But as the old and possibly apocryphal saying attributed to the late Senator Everett Dirksen goes “A billion here, a billion there, pretty soon, you’re talking real money.” And don’t forget the emotional toll that being the target of a lawsuit takes on the defendant doctor while the case is meandering through the process.

Skeptical Scalpel is a practicing surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last two years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog has had more than 275,000 page views, and he has over 3600 followers on Twitter.

  • WILLIAM HALE says:

    THERE IS NOTHING NEW HERE.
    THE PURPOSE OF A MALPRACTICE CLAIM IS MONEY,
    WHICH THE DOCTOR PAYS EITHER DIRECTLY IN DEFENSE OR IN INSURANCE PREMIUMS.
    THE SYSTEM IS A 3 WAY SQUEEZE, WITH THE DOCTOR AS DINNER.
    WITHOUT THE SUIT
    THERE WOULD BE NO INSURANCE COMPANY,
    THE PLAINTIFF’S LAWYER WOULD HAVE NO MONEY AND
    THE DEFENSE LAWYER WOULD HAVE NO MONEY.
    THEY WOULD ALL HAVE TO GET A JOB AND DO SOMETHING USEFUL.NONE OF THEM WANT TO DO THAT.
    THE WHOLE SYSTEM IS A CONSPIRACY AGAINST THE DOCTOR’S INCOME MOST OF THE CLAIMS ARE ABSURD.MOST ARE LOST
    MY CANADIAN FRIENDS SAY THAT
    THOMAS JEFFERSON ALLOWED THE CONTINGENCY FEE,
    REVERSING 800 YEARS OF BRITISH LAW.
    THE OBVIOUS SOLUTION IS LOSER PAYS, THE BRITISH SYSTEM.

    • SkepticalScalpel says:

      Are you any relation to Nathan Hale? I agree with you. Thanks for commenting.

      • Dee says:

        It is clear that you have never been the victim of an incompetent physicians malpractice. I went from being a productive, confident, tax payer to a disabled, destroyed and disfigured person. The victim of medical malpractice (if they survive) is devastated. I can not be compensated for the once full life that I and my family have lost. There are very few frivolous medical malpractice suits because the victims attorney has to spend a fortune to bring it to trial and the insurance lawyers resist at every turn. They drag it out for years so that those who have been harmed are further harmed by delaying their ability to get some compensation even though justice will never be had.

        • SkepticalScalpel says:

          I am sorry for your misfortune. I have not personally been of victim of an incompetent physician’s malpractice, but my mother was.

          I am not denying that malpractice occurs. The point of my post, and you seem to agree, is that it takes too long for malpractice suits to be resolved. The lawyers for the insurance companies have incentives to make cases drag. One, the lawyers (filing motions, taking more depositions, writing appeals, etc) get paid more when the case lasts for years. Two, the insurance company keeps the money you deserved for a longer time.

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