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Suffering, not malpractice, guides medical suits

BOSTON (Reuter) - When a malpractice lawsuit is successful, it has little to do with whether the doctor did something wrong. Instead, the size of the award is determined by whether the patient is permanently disabled, according to a study in Thursday's New England Journal of Medicine.

Dr. Troyen A. Brennan and his colleagues at the Harvard School of Public Health evaluated 46 New York state malpractice suits resolved after 10 years and discovered that the actions of the doctor did little to influence the final outcome.

In 13 of the cases, where records showed that the doctor was not responsible for the injury that led to the lawsuit, the patients won six of the cases and were awarded an average settlement of $98,192.

In contrast, there were nine cases where the records showed the doctor was negligent. In five of those cases, the settlements averaged $66,944 -- nearly a third less than when the doctor was not to blame.

The remaining 24 cases involved injuries that were caused by the underlying disease, not by the medical treatment the patient received. Nonetheless, the patients won 10 of those 24, and got a typical award of $28,760, often from an insurance company trying to avoid a costly trial.

But when the Brennan team re-grouped the 46 cases by the amount of disability the patient had, they discovered that permanently disabled plaintiffs won seven of their eight lawsuits -- regardless of whether the doctor or hospital was at fault -- for a typical award of $201,250.

When there was no disability involved, the patients won 10 out of 24 suits for an average settlement of $28,760. When the disability was temporary, patients had the worst luck, winning only four out of 14 lawsuits with a typical settlement of $38,857.

The results conform with other studies suggesting that the average settlement in a malpractice suit is $40,000, and that patients win about 40 percent of the cases.

The Brennan group said the findings call into question the need to determine who is negligent in a malpractice case because disability, not blame, seems to be the major factor influencing whether a patient gets any money out of a suit.

``Our results suggest that the standard of medical negligence performs poorly in malpractice litigation,'' they said.

Alternative systems, such as no-fault compensation for medical injuries, ``may be better than the present system at compensating injured patients and deterring preventable injuries.''

In previous research, Brennan and his colleagues discovered that negligent acts by doctors and hospital staff rarely result in medical malpractice claims but ``claims were relatively frequent when, according to our independent review of the medical records, no negligent injury had occurred.''

The latest study also showed the legal system ultimately fails to weed out legitimate malpractice lawsuits from bogus ones.

The Brennan group's attempt to find out which lawsuits result in payments to patients required 10 years because that is how long it took for 46 of the 51 pre-selected malpractice cases to wind their way through the legal system.