Although much attention has been given to “medical negligence liability crises,” in reality, very few injured patients ever file a medical negligence lawsuit.
In 2006, researchers at Harvard University announced the results of a study showing that most negligence claims involve medical error and serious injury, and concluded “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”i The researchers found that few claims were without merit, and those that were generally did not receive any money. Most negligence claims were meritorious, with 97 percent of claims involving medical injury and 80 percent involving physical injuries resulting in major disability or death. Few claims where there was not error were ever paid. In fact, researchers found the reverse–non-payment of claims where error was involved—was a bigger problem.

Co-author William Sage commented, “These findings are absolutely no surprise to any of us in the policy community. They are consistent with everything we suspected and learned from research over last 20 years, which is that the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.”ii

This conclusion did not surprise the patient safety movement. Kaiser Family Foundation President Drew Altman said, “Maybe the question instead of ‘Why do we have so many lawsuits?’ is ‘Why do we have so few?”
According to the National Center for State Courts (NCSC) only about six percent of the civil caseload is comprised of tort cases. Of that subsection, just three percent comprise medical negligence cases. And even that tiny number has declined by eight percent over the last 10 years.iv Data from other sources such as the National Practitioner Databank, to which all physicians’ medical malpractice payments must be reported, confirms the same downward trend.v

When the number of medical negligence payouts made every year is compared to the number of suspected deaths from preventable medical errors, it is easy to see why researchers have concluded that there are too few malpractice claims, not too

i David M. Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Ghandi, Allen Kachalia, Catherine Yoon, Ann Louise Puopolo, Troyen A. Brennan, Claims, Errors and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine, 354;19, May 11, 2006.
ii Amanda Gardner, Frivolous Claims Make Up Small Share of Malpractice Suits, HealthDay, May 10, 2006.
iii Emily Heil, Survey: Patients Suggest Medical Errors Are Commonplace, Congress Daily, November 17, 2004.
iv Examining the Work of State Courts, 2007, National Center for State Courts (NCSC).
v Annual Report, 2006, National Practitioner Databank