JOHN BROWNING: Is the sky really falling?

By John Browning

In my career I’ve defended doctors and hospitals from medical malpractice lawsuits and from accusations of negligence before the State Board of Medical Examiners.

I’ve received the panicky phone calls from a physician or practice administrator about an error that was made and its consequences for the patient. I’ve seen proof that doctors are human and make mistakes, just as I’ve witnessed doctors being the target of meritless lawsuits. I’ve heard the refrain from physicians’ groups and the insurance industry about the crisis in medical malpractice insurance, where a system overburdened by allegedly frivolous lawsuits and runaway verdicts has led to physicians paying outrageously high insurance costs, changing specialties and leaving Texas or even the medical profession itself.

Extensive tort reform efforts have led to caps on damages awarded in medical malpractice lawsuits, prerequisites for even bringing such suits in the first place, and other measures. Physicians, lobbyists and the insurance industry issued a Chicken Little-like alarm, and legislatures across the country responded. However, a new study reported in a recent issue of the New England Journal of Medicine makes me wonder if the sky was really falling after all.

The study, conducted by the Harvard School of Public Health and the Brigham and Women’s Hospital in Boston, analyzed 1,452 closed medical malpractice claims from 1984 through 2004. Rather than finding that the system is clogged with frivolous claims, this study found that 90 percent of the claims involved a severe injury. Of those, 26 percent resulted in death and nearly 80 percent in some form of disability. While 37 percent of the cases lacked any evidence of medical error, 63 percent were due to error.

The survey revealed that, of the groundless claims, the overwhelming majority (72 percent) did not result in any form of compensation. In examining the cases that actually went to trial, the Harvard study concluded that plaintiffs won only 21 percent of the time. A total of 61 percent of the cases were settled; these settlements averaged $460,000. Only 15 percent of the claims went all the way to a trial verdict. In those relatively few verdicts that favored the plaintiffs, the jury award averaged nearly $800,000.

Advocates on both sides put their own spin on the study’s findings. The American Medical Association focuses on what they perceive to be a high (nearly 40 percent) number of meritless lawsuits that do go forward. It also points to the high cost of defending medical malpractice lawsuits, both in terms of time away from patient care and the legal fees themselves, which average more than $90,000 per case.

Patient advocacy groups and personal injury attorneys, on the other hand, state that the study confirms what they’ve maintained all along: that the system is not overburdened with high jury verdicts, that most malpractice claims do, indeed, involve medical error and serious injury and that meritorious claims are far more likely to be paid than groundless claims.

The inescapable fact is that mistakes happen, and that doctors are human. While the egregious cases like doctors amputating the wrong limb and the death of a teenager from being given an organ transplant of the wrong blood type (at the prestigious Duke Medical Center, no less) make the evening news, a great many others never receive public attention.

A 1999 study by the Institute of Medicine estimated 44,000 to 98,000 Americans die each year because of medical errors. Assuming the lower estimate, that would have made medical negligence the eighth leading cause of death nationally — more than motor vehicle accidents or breast cancer. Even physicians acknowledge the importance of the right to sue over medical mistakes; a survey conducted by the Harvard School of Public Health and the Kaiser Foundation found that of the 831 doctors polled, more than a third had been the victims of medical errors.

Sometime ago, after threats by doctors at Mercy Hospital in Scranton, Penn., and elsewhere to walk off the job in protest over rising malpractice insurance costs, President Bush met privately with doctors in Scranton and heard their complaints. Shortly thereafter, President Bush gave a speech in support of his push for federal caps on punitive damage awards, criticizing “junk lawsuits” and a medical liability system that was “broken.”

I wish President Bush could have met with someone else in Pennsylvania before making his speech, particularly the widow of 73 year-old Frank Thornton. Mr. Thornton was scheduled for surgery at Mercy Hospital’s Wilkes-Barre affiliate in August 2000. While connecting him to a ventilator in preparation for anesthesia, an anesthesiologist who had failed her board certification exam five times mistakenly put the breathing tube down Mr. Thornton’s esophagus instead of his windpipe. The surgeon failed to correct the error, and Mr. Thornton was deprived of oxygen 10 minutes resulting in irreversible brain damage.

Weeks later, Frank Thornton — retired welder, decorated veteran, church deacon, husband and father — died. The surgeon and other doctors refused to talk with Mrs. Thornton about what had happened that day, and later in a deposition the same surgeon professed not to recall the events of the day. However, the hospital’s risk manager testified that the surgeon had expressed concern that the breathing tube was misplaced, and others, including two operating room nurses, confirmed the mistake as well. Three days into the medical malpractice trial, the hospital settled.

If President Bush had listened to Mrs. Thornton’s tragic tale, he would realize that the system is neither broken nor overburdened by frivolous lawsuits; that medical negligence occurs more often than we’d care to admit; and that only a relatively small percentage of cases go all the way to trial and result in a plaintiff’s verdict. I’d also like to think there are ways to address concerns over medical malpractice other than restricting an individual’s right to go to court; such as requiring doctors and hospitals to report errors to a national, federally-supervised database (there is already a National Practition-ers Data Bank that tracks settlements, judgments, and disciplinary actions).

Saying that the sky is falling doesn’t give a complete picture of the medical malpractice issue, and it doesn’t address the most important aspect of all — the safety of patients.

John Browning is a Dallas attorney and columnist for the Athens Review.