Pennsylvania MedMal Statistics
The Commonwealth of Pennsylvania, where we practice law, is one of several states to have been designated by the AMA as suffering from a malpractice litigation "crisis." That designation was bestowed some time ago now, but so far as we're aware, the AMA hasn't sounded any "all clear" bulletins for the Commonwealth. So in a free moment, we decided to take a look at some of the numbers, just to see what a "crisis" looks like.
For the year 2005, a total of 1698 medical malpractice suits were filed in the state's courts. The state's estimated 2005 population was a little under 12.5 million. That works out to one malpractice suit filed per every 7320 residents. The rate of filings is down about 40%, by the way, from 2002 levels.
Some 223 malpractice cases were tried to a jury verdict in 2005. An additional 14 cases were heard in bench trials. That's a total of 237 malpractice trials on the year -- one for every 52,446 residents.
Defense verdicts were rendered in 179 of the 223 jury trials, and 12 of the 14 bench trials -- in 80.6% of the cases, that is. Plaintiffs' verdicts were rendered in 46 cases. That's one plaintiff's verdict for every 270,209 residents.
The plaintiffs' verdicts fell in the following damage ranges:
Over $10 million: 0
$5 million to $10 million: 3
$1 million to $5 million: 10
$500 thousand to $1 million: 12
$500 thousand or less: 21
On the assumption that every verdict fell at the top of the range in each category, this would represent a maximum of $102.5 million in plaintiffs' verdicts on the year -- about $8.26 per resident. On the assumption that each verdict fell at the midpoint of the relevant range, it would represent a total of $66.75 million -- about $5.37 per resident.
Obviously, these figures don't account for pre- or post-trial settlements, transaction costs, etc. The fate met by claims in litigation, however, is supposed to be what drives the so-called "crisis." So we thought these numbers would be of interest.
For the year 2005, a total of 1698 medical malpractice suits were filed in the state's courts. The state's estimated 2005 population was a little under 12.5 million. That works out to one malpractice suit filed per every 7320 residents. The rate of filings is down about 40%, by the way, from 2002 levels.
Some 223 malpractice cases were tried to a jury verdict in 2005. An additional 14 cases were heard in bench trials. That's a total of 237 malpractice trials on the year -- one for every 52,446 residents.
Defense verdicts were rendered in 179 of the 223 jury trials, and 12 of the 14 bench trials -- in 80.6% of the cases, that is. Plaintiffs' verdicts were rendered in 46 cases. That's one plaintiff's verdict for every 270,209 residents.
The plaintiffs' verdicts fell in the following damage ranges:
Over $10 million: 0
$5 million to $10 million: 3
$1 million to $5 million: 10
$500 thousand to $1 million: 12
$500 thousand or less: 21
On the assumption that every verdict fell at the top of the range in each category, this would represent a maximum of $102.5 million in plaintiffs' verdicts on the year -- about $8.26 per resident. On the assumption that each verdict fell at the midpoint of the relevant range, it would represent a total of $66.75 million -- about $5.37 per resident.
Obviously, these figures don't account for pre- or post-trial settlements, transaction costs, etc. The fate met by claims in litigation, however, is supposed to be what drives the so-called "crisis." So we thought these numbers would be of interest.
4 Comments:
2005 is the first year in a long time that there weren't multiple eight-digit verdicts in Philadelphia, much less in Pennsylvania.
Using 2002 as a baseline is a bit misleading, since that was the year provisions limiting forum-shopping were put into place, and hundreds of lawsuits were filed in Philadelphia before the rules changed. Million-dollar verdicts are several times more likely in Philadelphia than in the rest of the state, and plaintiff verdicts are about twice as likely.
And, of course, jury verdicts are a small fraction of the total expense of medical malpractice.
Statewide malpractice filings, by year, from 2000 through 2005:
2000: 2632
2001: 2659
2002: 2903
2003: 1712
2004: 1816
2005: 1698
While the number of CASES FILED may have decreased in PA, the standard practice of naming as many doctors as possible in each suit has continued to erode access to health care in Pennsylvania, where physicians are now required by law to report every suit in which they are named to the state medical board.
Using that data, Pennsylvania Medical Board records reveal:
In fiscal 2002-03, the number of doctors named was 2,782.
In 2003-04, it was 2,081.
In 2004-05 it was 2,633.
In fiscal 2005-06, it was 2,302.
Each physician named in a suit must have his or her own defense counsel, and it is these costs, IN ADDITION to payouts, which affect premiums in Pennsylvania, which continue to be among the highest in the nation.
I noticed that no figures for total payouts were offered - while I haven't yet seen total payout figures for 2005, overall payouts rose to an all-time high of $448 million in 2004, up 13.5% from the previous year's total of $394.5 million.
So if premiums are affected by payouts and legal fees, NOT by how many cases are filed, it seems to me that touting a reduction in the number of cases filed is more or less irrelevant.
When Pennsylvania starts to attract young physicians again because premiums have DROPPED to reasonable levels, then we can talk about dropping our state from the AMA "crisis" list, as Texas has recently been dropped in light of reforms that have both reduced medical liability premiums and attracted new physicians to that state.
(1) How, I wonder, does the "doctors sued" statistic deal with physicians who are named in more than one suit during the reporting period? Are there 2782 different Pennsylvania physicians who were sued one or more times in 2002-03? Or were there rather 2782 occasions on which process was served on some physician or another? The question is pertinent because despite the note of complaint about "naming as many doctors as possible," the ratio of doctors to lawsuits actually doesn't look particularly high, on the surface. It looks to be under 1.5 per lawsuit, unless some of the doctors in the total are being sued repeatedly.
(2) I'm not sure the number of cases filed was "touted." I do admit to suspecting that many members of the public would be surprised to learn that the volume of malpractice litigation is not higher, given what they've heard in the media. That said, however, the volume is what it is. To some, the number of suits may seem higher than optimal. To others, it might seem lower than appropriate. To a few, it might seem just right. If we bracket such policy disagreements, the case statistics are of interest primarily because they do give some general idea of prevalence. That would seem a desirable thing for informed debate.
(3) It certainly seems unduly dismissive to say that the volume of litigation is "more or less irrelevant." To the extent that high malpractice premiums are blamed on an alleged excess of litigation, it seems fair to inquire just how much litigation there actually is. I'll agree that the attorney's fees and payouts cited by DBR may be of more direct and immediate relevance, to someone primarily interested (as DBR seems to be) in pressing the argument that premiums are too high because those payouts and fees impose unduly high costs on insurers. Payouts and legal fees, of course, are not the only factors affecting premium levels, nor even necessarily the primary factors in the short to middle run. But they are indeed costs, and it's legitimate to consider them, with one caveat. The caveat is that if one is attempting to identify the set of human actors with some responsibility for the costs at issue, a focus on defense fees and settlement payouts does cloud the responsibility picture somewhat, because one cannot automatically chalk up the entirety of those costs to devilishly clever plaintiffs' counsel who somehow keep bamboozling judges and juries into excessive or completely unmeritorious awards. One also has to reckon with the possibility that some cases are inefficiently defended, and/or the possibility that insurers sometimes buckle and settle when maybe they shouldn't.
(4) That caveat in place, let's consider those payouts. There might be two analytical steps, here. First, we might determine what the payouts actually are. Second, we might decide whether we think they're too high -- sufficiently high, at any rate, that we could reduce them enough to have some significant ameliorative impact on premiums, without also working a significant hardship or injustice on claimants. The payout numbers cited by DBR are germane to the first step. They appear to include settlement payouts, not just payments on judgments following trial, and so it's reasonable to treat them as comprehensive. Some rough-and-ready arithmetic tells us that $500 million in annual payouts, to a population of 12.5 million, would represent a yearly payment of $40 per capita. That's $40 per capita, per year, to compensate for all harm flowing from reasonably preventable medical error.
Again, that number may seem high to some. It may seem just right to others. To still others, it may seem a bargain for the medical industry. To me, it does not necessarily suggest a crisis of overgenerosity in the aggregate, given what I read of the prevalence of medical error. There may be problems of distributive justice, when a handful of claimants reap multi-million dollar awards even as many others go completely uncompensated. But those issues I must leave for another day.
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