Jeff Segal, MD, JD, FACS
An article in the July issue of Health Affairs detailed the natural history of malpractice claims in Massachusetts. Approximately 60% of these claims were abandoned by the plaintiff. But, this news came slowly to the doctor – who waited an average of 3 years after the claim was filed. During that time frame, costs were incurred to defend the case. And the doctor was burdened by a claim hanging over his or her head.
The study’s author, Dwight Golann, interviewed attorneys and insurance companies about the reasons for the abandoned claims. One common refrain was the plaintiff learned more during the litigation – and the new knowledge weakened the claim. For example, the medical record might have been sparse – the default assumption being “if it wasn’t documented, it wasn’t done.” But, the patient may have subsequently learned that the test was actually performed.
Another reason: Often, the patient improves clinically over time. Good for the patient. Bad for an attorney arguing for “higher damages.” The lower the damages, the lower the financial payout.
The medico-legal system is highly inefficient in filtering for meritorious cases. This inefficiency imposes a significant friction cost on the practice of medicine. Three years to “make a medico-legal diagnosis” is just too long.