TorteDeForm

Eric Turkewitz

The Myth of Frivolous Litigation

Cross-posted from NY Personal Injury Law Blog

Some accept as gospel that frivolous lawsuits are a big part of medical malpractice litigation: Baseless claims brought by uninjured people, or whose injuries were not caused by negligence. Not so, according to "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation," a study by the Harvard School of Public Health and the Harvard Risk Management Foundation that was published earlier this year in the New England Journal of Medicine.

The results, in fact, are the opposite of what the tort "deformers" claim, based on results from 1,452 randomly selected, closed medical malpractice files. The reviewers found that 97 percent had indeed suffered harm. In about one-third of these patients, the damage wasn't clearly attributable to negligent medical treatment, a wrong prescription, or a misdiagnosis. Most of those claims were correctly denied compensation, the team reports.

According to the study, 73 percent of plaintiffs whose claims had merit received compensation.

The study also found that just six people had received compensation that were uninjured and 145 had injuries that had not been convincingly linked to medical error. On the other hand, 236 plaintiffs who did suffer an injury from medical error received no compensation. The authors wrote:


One in six claims involved errors and received no payment. The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

Eighty percent of the claims involved injuries deemed to have caused significant or major disability or death. In only 3% of the claims, no adverse outcomes from medical care were evident.

Since the majority of payments from insurance companies went to people who had been harmed by medical errors and not to people with baseless claims, the authors said that the "moves to combat frivolous litigation will have a limited effect on total costs."

Taking direct aim at politicians and business lobbyists, the authors wrote that:

"The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired."

It is not the first time that a Harvard study has debunked the popular myths spread by insurance companies or politicians with respect to medical malpractice. It had happened back in 1991 by the Harvard Medical Practice Study that found that only eight percent of those injured by medical negligence brought lawsuits. But that is a post for another day.

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Posted at 2:26 PM, Jan 25, 2007 in
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Comments

To quote the Results synopsis in the study:
"Overall, claims not involving errors accounted for 13 to 16 percent of the system’s
total monetary costs. For every dollar spent on compensation, 54 cents went to administrative
expenses (including those involving lawyers, experts, and courts). Claims
involving errors accounted for 78 percent of total administrative costs."

A more accurate synopsis would be: "Real victims only receive a third of the compensation from medical malpractice litigation." Now, if I were a med mal lawyer I would be happy with that number and fund as many websites as I could trying to make it sound good. As a potential patient, I can't say I'm so excited.

Posted by: Drew Drytellar | January 25, 2007 4:22 PM

Note also that Turkewitz misrepresents the study -- while 97% of claims reflected patients who suffered "harm," a far smaller number of claims reflect patients who suffered harm because of malpractice. The correct number is 60% -- the Harvard study found that 40% of claims were non-meritorious. Turkewitz is either being dishonest or simply parroting the officially dishonest trial-lawyer party line about the Harvard study (Turkewitz's post is almost verbatim from the ATLA press release), something Point of Law pointed out seven months ago.

Turkewitz defines "frivolous" far more narrowly than those who complain about the medical malpractice system do. It's easy to say that frivolous litigation is a myth if you redefine it to assume away the problem doctors are complaining about.

Turkewitz also misrepresents the 1991 Harvard study results (and leaves out the part of that study that showed that meritless claims were as likely to win at trial as meritorious claims), but that's a story for another day, apparently.

Posted by: Ted | January 25, 2007 6:14 PM

The Harvard School of Public Health is a Hate America, Commie treason indoctrination camp. They have the credibility of a Soviet leader claiming Commies invented lipstick and cola drinks. The ratings are subjective, done by left wing ideologues. Many were trainees who know nothing. The study has no validity. Yo, Lee, even they acknowledge OB cases could not be rated reliably.

I don't appreciate the way this post fails to point out the inter-rater reliability (agreement between 2 raters rating the same record) was close to chance and unacceptable. I found this intentionally misleading.

What these biased Commie hacks failed to point out, as well, was that every penny going to the land pirates came from the care of other patients.

http://www.hsph.harvard.edu/faculty/articles/litigation.pdf

The juries, the cab drivers, have spoken. Even at their level, the vast majority of land pirate claims have no merit.

If the aim of medmal is to make the victim of medical error whole, give all victims Medicaid, for adequate treatment. Don't waste money, and especially medical attention on meritless claims.

Question. Of the claims with an injury but no error found, how many resulted in compensation to the innocent defendant for the carelessness of the lawyer?

I already know the answer. Zero.

The land pirate has dealt itself total immunity from damages done to innocent third parties. No study, no reliability statistics, no training is needed to draw that conclusion. How is that justified by the benighted left wing ideologues here? You land pirates have the ultimate tort reform to yourself, absolute immunity, self-dealt, supported by biased, corrupt, pro-lawyer running dogs on the bench.

How is that just?

Posted by: Supremacy Claus | January 26, 2007 7:56 AM

Drew,

I think we'd all like litigation to cost as little as possible. As a potential patient we don't want to have to go through the trouble or expense of litigation. However, if your doctor injures you what alternative is there?

Moreover, as to the expense, all of that litigation expense could be avoided by..... not making the medical error.

One way to give patients more money from litigation over their injuries is to give larger damage awards. How about that?

Indeed, if you oppose injured patients from getting so little, why not focus your wrath on the responsible doctors?

Moreover, suggest an alternative to the civil justice system, the burden is on you to create a new system different than the status quote.

Here is a post correctly framing the issue...

http://www.tortdeform.com/archives/2007/01/dmi_on_the_2007_state_of_the_u.html

Posted by: Cyrus Dugger | January 26, 2007 10:03 AM

Ted:

Two points:

1. Not all malpractice will show up in medical records, particularly with the "failure to diagonse" cases. A 60 year old man says, for example, that he complained of bloody stool and doctor said not to worry, it doesn't look like anything, and makes no notes. A year later the colon cancer is found. A person reviewing records will record this as "non-meritorious," because s/he sees no note in the chart. It is a factual issue only a jury can resolve, as to whether there was, or was not, bleeding. So while positive findings from the reviewers are significant because there are documented cses of malpractice, negative findings from reviewers do not conversely mean a case is frivolous.

2. I do not define frivolous. The law does. This is the definition in New York:

(c) For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

You can read the rules in their entirety at this link:
http://www.courts.state.ny.us/rules/chiefadmin/130.shtml

--ET

Posted by: Eric @ New York Personal Injury Law Blog | January 26, 2007 10:49 AM

Drew:

Sometimes costly and extended litigation are a deliberate defense strategy. There are three reasons:

1. If the insurance companies make your life miserable -- even on slam dunk cases of retained surgical equipment as shown this link -- then attorneys won't take smaller suits because it isn't worth the immense amount of time and money needed, thereby decreasing the overall number of malpractice cases;

2. Defense lawyers bill by the hour and have no incentive to reach a quick disposition; and

3. If you get a judgment in your favor in New York, then interest on the money starts to run from the time of the judgment, not from the time of the incident. Thus, the insurance companies continue to hold and use the money for investments for years in the interim.

I've posted on this subject before here.

--ET

Posted by: Eric @ New York Personal Injury Law Blog | January 26, 2007 11:03 AM

Eric - nice post. I appreciate your followup comments in which you explain the definition of frivolous. If I know Ted, he'll take umbrage with (1) and claim that "reasonable argument for extension" will apply to any wild idea a greedy trial lawyer can come up with.

Your point about questions of fact for the jury is well-taken and is worth further discussion. I made a similar post to this some time ago in which I also stated that only 3% of malpractice cases are frivolous, as only 3% had no injury. If the question of whether an injury was caused by malpractice is a question of fact for a jury, then any case in which an injury occured is not frivolous.

Posted by: Justinian Lane | January 26, 2007 5:53 PM

To begin with, a mea culpa. Apparently I gave the impression that I did not think defense lawyers are part of the problem. They most certainly are. Or, put differently, the current system can be corrupted by forces on both sides. Cyrus asks the question what can you do about it? There are many things, but a good place to start is loser pays. That puts the onus on the weaker side to settle things up quickly or not bring a case at all. Plaintiff's attorneys would have much less incentive to bring those suits where the doctor is not at fault. Insurance companies would then restrain defense attorney's from playing the games that Eric mentions in point 2 and 3. Smaller cases would also become more worthwhile (Eric's point 1).
As for Cyrus's second point (medical malpractice can be avoided by "not making the error"), I agree in principle I don't know if that is the most productive mindset to have. Any enterprise as complicated as medicine is bound to have errors. I prefer to focus my wrath on a system that, in my opinion, does more to enrich the middlemen than help those who suffer from those errors or reduce future errors. The antagonistic nature of medmal litigation makes truly innovative approaches to prevent medical error very difficult (no doctor in their right mind would volunteer case studies).
Now on to Cyrus' question: "One way to give patients more money from litigation over their injuries is to give larger damage awards. How about that?" Maybe patients should get more money. I'm honestly not sure. But even if patients should get more money it needs to be distributed justly. One problem of juries is the utterly random way in which they hand out awards. Loss of life can be valued from the hundreds of thousands to the hundreds of millions. In so far as there is a system it is not a very fair one (lawyers have noted that white plaintiffs receive more than black, men more then women, etc.). A side note here is that randomness creates the need for insurance and insurance creates extra administrative costs (I work as an actuary). If you made jury awards less erratic (even if greater overall), you could eliminate a lot of extra expenses (like those damned overpaid actuaries).

Posted by: Drew Drytellar | January 26, 2007 6:40 PM

Eric, I'm well aware of what the legal definition of "frivolous" is. And, just like I said, it is considerably narrower than what politicians and doctors are talking about when they complain about frivolous litigation. (I'll further note that in some states, like Texas, the legal definition of "frivolous" is even narrower than that.) If a Greenpeace activist argued that the United States uses too much oil, and an Exxon representative responded by saying that Europeans use more olive oil than Americans do, you'd correctly note that the Exxon representative is not responding to the first person's complaint, even though both are using the word "oil." You're committing the same sin of equivocation in your post.

I don't like to use the word "frivolous" when I talk about reform precisely because of the possibility of this equivocation (see my comments at the Washington Legal Foundation Thursday), but that doesn't mean that the original post is not being disingenuous when it argues that there's no such thing as frivolous litigation by pointing to a legal definition that the people who complain about frivolous litigation think is too narrow. Why not address what reformers are actually talking about instead of creating a strawman?

The fact remains that the Harvard study found that 40% of malpractice cases are meritless, with either no injury or no medical error, and, because not all medical errors are medical malpractice, there's some question about the other 60%, and that the system came to the wrong result over 30% of the time, and probably more than that. That's not a record to be proud of, and the evidence is that a malpractice litigation system without damages caps makes medical care worse, rather than better.

I don't see why "fact for a jury" has anything to do with the Harvard study. First, whether someone suffered an injury is also a prima facie element of the case that is also a fact for a jury, and you acknowledge that the 3% of claims without evidence of injury are frivolous. Second, we don't know how many of the 37% of claims without evidence of medical error were dismissed pre-trial before they even got to a jury. Third, we don't know how many of the 60% of claims with evidence of medical error and evidence of injury met the legal standard for medical malpractice.

Posted by: Ted | January 27, 2007 5:23 PM

Cyrus: I oppose all tort reform because it has weak effects if any. I even oppose Supreme Court limits on punitive damages. Instead end all immunities, including Hans, and its self-dealing parent, the 11th Amendment. The cult criminals are not Kings. They do not speak with the voice of God. The religious origins of immunity violate the Establishment Clause. I do support giving defendants protection from criminal sanctions, such as punitives require a beyond a reasonable doubt burden on the plaintiff.

Immunity deprives the cult criminals on the bench and in the street from the benefits of torts.

To answer your question as to the alternative to medmal, that Ted will not like, nor will any doctor like? Tight regulation, with every act second guessed by a huge, expensive bureaucracy.

Posted by: Supremacy Claus | January 28, 2007 4:46 PM

So many important points here, but I'll just quickly touch on a few.

Hopefully, this back and fourth can become part of a longer dialogue about the issue.

1) Loser pays discourages meritorious suits because those (unlike big corporations) that aren't as able to cushion the risk of as those with money. Moreover, if the system is as erratic as you state (which I contests), verdicts in a loser pays system will be as erratic as you find the current system to be and therefore randomly punish plaintiffs and defendants alike with attorneys fees. Here are some additional critiques.

Some Reasons To Oppose "Loser Pays" – Part One

"Loser Pays" Doesn't: When lawsuit losers are forced to pay the legal fees of winners, the cost of litigation for everyone goes up

2) If we accept that loser pays is not an effective way to improve the system for the reasons stated above and in the two attached posts, Drew offers no alternative to bettering the system….which should say a lot about the amount of better alternatives.

3) Yes medicine is complicated, but so are a lot of things in the modern world. We're sophisticated we deal with that. Doctors have some of the best technology at their disposal. Moreover, as Drew is aware there are between 40-80,000 deaths a year that result from medical errors. By way of comparison there were about 40,000 auto fatalities in 2003. Of all the areas of professionalism in which we would ask for and expect the most care to be taken, I elect that it be the way a doctor or nurse handles operating on and treating human being’s bodies.

4) Drew makes it seem as if we're supposed to be okay with bad medical care because it is complicated. But often times medical errors occur because of really simple avoidable errors like bad handwriting.

5) Juries – nobody is saying juries are perfect.. but what's the alternative you propose? As imperfect as they are we allow them to decide whether somebody lives or dies, let alone how much their suffering is worth. Drew is also being a little misleading because he fails to note that judges will often invalidate extremely high awards.

6) I return to the point that Drew offers us little alternative except discouraging lawsuits in some way or another. And to what end do we do this? To save our insurance company money? To save doctors money? Lower premiums i.e. save us money? Just for the sake of it. Contrary to all of the attention on lawsuits, the best way to lower premiums and the cost of medicine is to reduce medical errors. Medical errors don’t just result in lawsuits, and don’t just kill and injure people, they greatly increase the cost of medical care and a given hospital stay. Imagine you go to a doctor 30% hurt, they hurt you again and now you’re 60% hurt. You are now 100% more hurt than you were when you came in, potentially requiring twice the hospital stay, twice the medication, twice the nurse time, twice the doctor time, twice the tests, twice the expensive procedures, not to mention twice the worry of your family and friends.

7) If you give doctors legal immunity, what's to keep them caring if they botch or rush a job? The threat of lawsuits helps keep the quality of medical care high. Pointed question to drew - Do you think there would be less or more medical errors if we completely cut off all access to the courts for victims of medical malpractice?
These points are outlined and supported with statistics in the medical malpractice section of DMI’s official response to the State of the Union Address, available here.

Posted by: Cyrus Dugger | January 29, 2007 1:08 PM

As to the discussion about the Harvard Study, let's let Harvard speak for itself (press release below) and see how it compares to the above assertions ....

HSPH Press Release
Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits
System Does a Good Job of Rejecting Claims Without Merit, but Administrative Costs Are Exorbitant

For immediate release: Wednesday, May 10, 2006

Boston, MA – The debate over medical malpractice litigation, which raged during the last presidential campaign, continues as a hot-button political and health care issue in the U.S. The Senate is expected to vote soon on legislation to impose a federal cap on noneconomic damages in malpractice suits, following on similar bills that passed the House of Representatives but stalled in the Senate last year. One popular justification for tort reform is the claim that “frivolous” medical malpractice lawsuits—those lacking evidence of substandard care, treatment-related injury, or both—enrich plaintiffs’ attorneys and drive up health care costs. A new study by researchers from the Harvard School of Public Health (HSPH) and Brigham and Women’s Hospital challenges the view that frivolous litigation is rampant and expensive.

The researchers analyzed past malpractice claims to judge the volume of meritless lawsuits and determine their outcomes. Their findings suggest that portraits of a malpractice system riddled with frivolous lawsuits are overblown. Although nearly one third of claims lacked clear-cut evidence of medical error, most of these suits did not receive compensation. In fact, the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid. The findings appear in the May 11, 2006 issue of The New England Journal of Medicine.

“Some critics have suggested that the malpractice system is inundated with groundless lawsuits, and that whether a plaintiff recovers money is like a random ‘lottery,’ virtually unrelated to whether the claim has merit,” said lead author David Studdert, associate professor of law and public health at HSPH. “These findings cast doubt on that view by showing that most malpractice claims involve medical error and serious injury, and that claims with merit are far more likely to be paid than claims without merit.”

The authors reviewed 1,452 closed claims from five malpractice insurance companies across the country. They focused on four clinical categories: surgery, obstetrics, medication and missed or delayed diagnosis, areas that collectively account for about 80% of all malpractice claims filed in the U.S. Specialist physicians in each of these clinical areas reviewed the claims and the associated medical records to determine whether the plaintiff had sustained an injury from care. If an injury had occurred, the physicians judged how likely it was to have been due to medical error.

The reviewers found that almost all of the claims involved a treatment-related injury. More than 90% involved a physical injury, which was generally severe (80% resulted in significant or major disability and 26% resulted in death). The reviewers judged that 63% of the injuries were due to error. The remaining 37% lacked evidence of error, although some were close calls.

Most claims (72%) that did not involve error did not receive compensation. When they did, the payments were lower, on average, than payments for claims that did involve error ($313,205 vs. $521,560). Among claims that involved error, 73% received compensation. “Overall, the malpractice system appears to be getting it right about three quarters of the time,” said Studdert. “That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.” The 27% of cases with outcomes that didn’t match their merit included claims that went unpaid even though the injury was caused by an error (16%); claims that were paid but did not involve error (10%); and claims that were paid but did not appear to involve a treatment-related injury (0.4%).

However, the study did not paint a uniformly positive picture of the current malpractice system. The costs of litigating claims, including defense costs and contingency fees paid to plaintiffs’ lawyers, averaged $52,521 per claim. Overall, these administrative costs amounted to 54% of the compensation paid to plaintiffs. “Deciding negligence is a very expensive process,” said Studdert. The authors also found that it took an average of five years from injury to resolution of the claim—a long time for plaintiffs to wait for compensation and for defendants to endure the uncertainty that litigation entails.

Finally, the authors found that the claims that did not involve errors absorbed a relatively small piece of the costs of compensation. Eliminating those claims would decrease the system’s compensation and administrative costs by no more than 13% to 16%. “Many of the current tort reform initiatives, such as caps on noneconomic damages, are motivated by a perception that ‘jackpot’ awards in frivolous suits are draining the system,” explained Michelle Mello, an associate professor of health policy and law at HSPH and a co-author of the study. “But nearly 80% of the administrative costs of the malpractice system are tied to resolving claims that have merit. Finding ways to streamline the lengthy and costly processing of meritorious claims should be in the bullseye of reform efforts.”

In a separate study released May 10 by the Robert Wood Johnson Foundation’s Synthesis Project, Mello examined the effects of the recent increases in malpractice insurance premiums on the delivery of health care services and the impacts of state tort reforms. Reviewing existing studies, the report concluded that the deteriorating liability environment has had only a modest effect on the supply of physician services. “The best evidence shows, at most, a small overall decrease in the number of physicians practicing in high-liability states compared to lower-risk states, though some rural areas have been more affected,” Mello said. Aside from caps on noneconomic damages, most tort reforms adopted by states in response to malpractice crises have not been effective in boosting physician supply or reducing insurance or litigation costs. Damages caps “help constrain growth in litigation costs and insurance premiums over time, but disproportionately burden the most severely injured patients.” The study is available at

http://www.hsph.harvard.edu/press/releases/press05102006.html

Posted by: Cyrus Dugger | January 29, 2007 1:26 PM

Could DMI give us the some of the following figures which I think could be Relevant
• Percentage of practice costs in the U.S. for most- sued specialities that can be directly tied to malpractice premiums ?
• Number of deaths each year that could be attributable to having no medical care around ?
• Number of hospital injuries each year that are attributable to preventable medical errors: is it more / less than 3% of all the patients
• Total no. of lives saved by any medication in any given year?
• Percentage of doctors with the “sue-happy ” specialities who have been served in the last month or named in a lawsuit
And Also
What is the percentage of time a plaintiffs lawyer will loose in front of jury on trial in a typical med-mal case ..is it more/less than 3%

Posted by: Anirban | January 29, 2007 11:56 PM

Cyrus: are you ever capable of doing anything other than cutting and pasting? Did one thing in the vast block of text contradict anything I said about it, or are you just trying to bury the discussion?

Posted by: Ted | January 30, 2007 7:27 AM

The lawyer opposes giving doctors immunity because they will stop caring about mistakes if deprived of a personal stake in preventing them.

The error rate for the lawyer and the judges failing to dismiss meritless claims is 75%, so say juries finding in favor of the doctor defendant. Compare that to the resources, experience, and youth of district attorneys, with their 75% guilty verdict rates, with their higher burdens of proof.

If that is the standard of professional performance, then the immunity of the civil lawyer and its running dog judge explains their not having a personal stake in the outcome of the claim, and their poor performance across the nation.

Posted by: Supremacy Claus | January 30, 2007 10:27 AM

Ted,
The synopsis by Harvard of their own study is here so that people can see for themselves what Harvard sees as the primary conclusion and thrust of its own study.
Indeed the Harvard study rebuts most of your usual general medical malpractice talking points.
Pointedly, the title is “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits,” whereas you consistently argue for just the opposite point of view.
Turning to the specific discussion,
To tell the story differently, according to the study out of 100 medical malpractice claims:
73 claims will be correctly decided
16 will be meritorious claims that went unpaid
10 will be paid when they should not have been
Ted is saying that 40% were not meritorious. What he’s trying to do is reframe the debate. Ted is talking about which claims were not found to have been malpractice. However, there is a spectrum between completely baseless lawsuits and formal medical malpractice.
The issue is how we define non-meritorious. Non-meritorious really means not ultimately being found to have constituted medical malpractice. The study itself states that “The remaining 37% lacked evidence of error, although some were close calls.” This “close calls point” underscores the fact that non-meritorious means that there was not enough evidence to prove malpractice, not that the suit was baseless or inappropriate. That doesn’t mean the health practitioner delivered flawless service, it just means that they did not rise to the level of medical malpractice.
Indeed the study found that:
“almost all of the claims involved a treatment-related injury. More than 90% involved a physical injury, which was generally severe (80% resulted in significant or major disability and 26% resulted in death).
These were real injuries that a reasonable person would think to litigate, not baseless lawsuits. In some cases it may not have been possible to know if malpractice was involved without going to court and going through the discovery process.

Ted attempts to use the 40% number as a proxy for a statistics on frivolous claims, but what he’s talking about are the entire range of claims from the very small percentage where there was simply no injury, to the majority of the claims represented by this 40%.

The parallel in a criminal case is having a suspect who might actually be guilty, but you just don’t have the evidence to prove it on the record or in your hands.

Lastly, this entire discussion ignores the point that most victims of medical injuries don’t even file claims. Eight time as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation. See National Academy of Sciences Institute of Medicine, “To Err is Human” (1999); Harvard Medical Practice Study (1990).

For a fact sheet on this issue see the Center for Justice and Democracy’s document.

http://www.centerjd.org/MB_2007medmal.htm#_edn2

Posted by: Cyrus Dugger | January 30, 2007 1:09 PM

The Harvard study has no validity. The raters were trainees or academics. This means they are less experienced, less skillful than clinicians providing care full time. The analogy is to trust your life or death case to a law prof or the winningest attorney in the small specialty of your case.

The peers who reviewed the article prior to publication were of the same ilk and clueless.

Posted by: Supremacy Claus | January 30, 2007 3:30 PM

http://hsphsun3.harvard.edu/faculty/articles/litigation.pdf

I don't appreciate having to read the original article to offset the left wing ideologue misrepresentation of this blog. You must think the readers are children.

Not only were the raters inexperienced, not only were the Kappa coefficients of their inter-rater reliability marginal, not only were other reliability measures or validity measures just forgotten, making the outcome meaningless. The raters underwent a full day of indoctrination by the left wing ideologues of that Hate American treason indoctrination camp, Harvard. They were indoctrinated into how to fill out the ratings for hours on end. The word, Harvard, implies an intense left wing extremist hatred of this country. Any output must be dismissed, just slick, biased, hate speech. Garbage.

Then, look at the author line. Half were lawyers. Have a nice day, for Pete's Sakes. The study has the validity of a Soviet claim to the invention of lipstick and Coca-Cola.

Nowhere in the article do these land pirates cover the definition of legal causation. Not only must the error be the proximate cause of the injury, but no unforeseen intervening cause must be found. The jury in a trial would hear all about the hijinks of the sleazeball plaintiffs, their non-compliance, their self-inflicted injuries, their criminal conducts.

The left wing ideologues in the press picked up on this worthless work. If every left winger screamed about it, it still would confer no validity on it.

When a defendant decides to stand up to the land pirates and their totally pro-lawyer rent biased, running dogs on the bench, juries confirm the claim has no merit in 75% of cases. This contrasts with the standard of due care which is much higher and more difficult to meet in the criminal law, where 75% of verdicts are guilty.

This contrast in rates represents a massive class tort by the plaintiff bar. They owe the docs of the nation about a $tril once their self-dealt, unconscionable, unconstitutional immunity is reversed.

Posted by: Supremacy Claus | January 30, 2007 5:41 PM

"Indeed the Harvard study rebuts most of your usual general medical malpractice talking points."

You say that, but every fact in the Harvard study is consistent with my medical malpractice talking points. The Harvard study doesn't contradict anything I've stated. Name one fact in the Harvard study that "rebuts" any, much less "most" of my arguments.

Cyrus exhibits his strange lack of familiarity with the English language when he claims that a lawsuit brought in a case without medical error is "meritorious." And he continues to incorrectly conflate "medical error" with "medical malpractice," even after being corrected on this mistake several times without once defending his assertion.

Posted by: Ted | January 30, 2007 6:08 PM

So Frank agrees that...

"Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits" are "In Doubt," as per the referenced summarizing title of the study?

Posted by: Cyrus Dugger | January 31, 2007 9:36 PM

Cyrus's most recent comment explains a lot: it implies he can't tell the difference between fact and opinion.

Posted by: Ted | February 3, 2007 7:58 AM

The "reformers" often try to sound as if their concern is that victims get more of what they should in compensation and that many victims are closed out of the system because of "high administrative costs". If they were sincere on these points, the "reformers", would be suggesting a system that is less expensive for plaintiff attorneys and less cumbersome and restrictive so that victims have greater access.

The 'reformers" would also be aiming their assaults on those WHO COMMIT MALPRACTICE AND NEGLIGENCE and on the OVER INGORGED INSURANCE CARRIERS, which are often doctor owned and monopolistic. The fact is, reformers NEVER propose any of these things because their true agenda is to remove victims from access to the courts, through devices like so called "Health Courts" or "Screening Panels" or fair and just compensation for their injuries by first demonizing the victims only advocates and then by introducing legislation, such as ridiculous and arbitrary "caps", that would make it all but impossible for victims to access a jury and reduce their potential compensation to the point where plaintiff lawyers could not afford to take most cases.

The "reformers" callous and corrupt attempts at further victimizing the injured are shameful. They are based in greed and a virulent disdain for plaintiff lawyers.

But victims, unfortunately, far outnumber the few, but loudly screeching, of this group whose "reform" is often-time but a reflection of their own selfishness and hatred.

Everyone is a potential patient and therefore everyone is a potential victim. And with the staggering numbers of victims (and scores of studies to this effect can be cited)the close reality of becoming a victim should motivate all to fix bad medicine, dysfunctional and bacteria infested hospitals and runaway insurance companies.

Posted by: Michael | February 4, 2007 9:26 PM

Anyone who opposes limits on compensation to the victims of carelessness have to declare their support for the removal of the obstacles to compensation in legal malpractice for the victims of lawyer carelessness or else shut up.

The lawyer and the judge have near absolute self-dealt immunity from any accountability to the massive numbers of victims who have to suffer the effects of their carelessness, incompetence, and corruption.

No one here supports properly compensating the victims of the land pirate. Everyone here is a hypocritical political hack. Some want privileges for sleazeball corporations. Some want special privileges for sleazeball, parasitic elements so lawyers can further their rent seeking. All are land pirates, between whom I cannot distinguish.

Posted by: Supremacy Claus | February 7, 2007 8:34 AM