Screening Plaintiffs and Selecting Defendants in Medical Malpractice Litigation: Evidence from Illinois and Indiana

Abstract

Many physicians and tort reform advocates believe that most medical malpractice (med mal) claims are “frivolous.” As evidence, they often rely on reports that only about 20 percent of claims result in a payout. Many physicians and reform advocates also believe that plaintiffs lawyers often sue every health provider with even a remote a connection to the patient. Plaintiffs’ lawyers, however, insist that they screen med mal cases carefully, and when they bring a claim, are selective in whom they sue. Can these perspectives be harmonized? We study this question using databases of every insured med mal claim closed in Illinois during 2000–2010 and in Indiana during 1980–2015, and with semi‐structured interviews with six plaintiffs’ lawyers. We innovate by using defense costs to assess whether plaintiffs’ lawyers take a case seriously. We treat cases with under $5k in defense spending as “nonserious” unless they have a payout over $25k. We find evidence that many “cases” are nonserious—suggesting that screening is an ongoing process that does not end when a case is accepted. Observed success rates are sensitive to whether one counts “claims” (each defendant is a separate claim) or “cases” (one plaintiff vs. one or more defendants), includes pro se and/or only represented cases, and includes all versus only serious cases. If we analyze cases instead of claims and limit to serious, represented cases, we find much higher success rates (43 percent in Illinois; 44 percent in Indiana). Success rates are higher still in cases brought solely against institutional defendants (58 percent in Illinois; 68 percent in Indiana). Plaintiffs’ lawyers are also selective in the number of defendants they sue. In med mal cases involving only physicians and/or institutions, the mean number of defendants is 1.5 in Illinois and 1.8 in Indiana.

Medical Malpractice and Physician Discipline: The Good, The Bad and The Ugly

“…That said, paid med mal claims and disciplinary actions come at the end of a lengthy process—and physicians have ample opportunity to defend themselves on various grounds. Indeed, our previous work indicates that plaintiffs’ lawyers routinely turn away most potential cases because damages are too modest, liability is too hard to prove, or both (Rahmati et al 2018).…”

The Government as Plaintiff: An Analysis of Medical Litigation Against Healthcare Providers in the Eastern Province of the Kingdom of Saudi Arabia

“…2,16,26,31,32,52 Some studies further examined the amount of compensation paid. 4,16 The focus on financial penalties within medical litigation is indeed reflective of the dominance of previous studies focusing exclusively on patients as plaintiffs, which results usually in compensations paid to patients. Only a few studies considered other types of verdicts in medical litigation.…”

“…The type of verdict, in previous studies, mainly looked at whether the verdict was in favor of the plaintiff or the defendant or if they have reached a settlement 2,16,26,31,32,52 . Some studies further examined the amount of compensation paid 4,16 . The focus on financial penalties within medical litigation is indeed reflective of the dominance of previous studies focusing exclusively on patients as plaintiffs, which results usually in compensations paid to patients.…”

“…Also, the number of defendants (other HCPs) involved in the violation claim was included. The extant literature guided the selection of the independent variables 4,16–18,20,23–25,28–30 …”

“…Although various stakeholders can provoke medical litigation against healthcare providers (HCPs), patients have been the main plaintiff in litigations 1,2 . Governments have also incurred disciplinary actions on HCPs given medical litigations filed by patients 3,4 . Such actions reflect governmental oversight, which can take different forms with various foci.…”