An article appearing in The New England Journal of Medicine on April 5, 2012 analyzed 26,853 medical malpractice claims that were closed between 1995 and 2005 (“closed claims” include medical malpractice claims that resulted in an indemnity payment (a payment made to a medical malpractice claimant) and medical malpractice claims that did not result in an indemnity payment (including those that were dismissed and those that resulted in a verdict in favor of the medical malpractice defendant)). The medical malpractice claims that were analyzed involved 40,916 physicians who were covered under medical malpractice insurance through a nationwide medical malpractice insurance company.
“Defense costs” are the expenses directly related to defending medical malpractice claims and include filing fees, expert witness fees, and other claim-associated expenses.
The study found that the mean defense costs associated with medical malpractice claims that resulted in an indemnity payment was $45,070 while the mean defense costs associated with medical malpractice claims that did not involve an indemnity payment was $17,130. The mean defense costs varied among medical specialities whether or not they involved an indemnity payment but were lower in all medical specialities for medical malpractice cases that did not involve indemnity payments (mean defense costs ranged from a low of $7,283 for nephrology to a high of $25,073 for gynecology for medical malpractice cases not involving indemnity payments). Cardiology and oncology had higher mean defense costs ($83,056 and $78,890, respectively) when compared to dermatology and ophthalmology ($24,007 and $23,780, respectively).
The article concluded that “…although the costs of dispute resolution are higher for claims that result in indemnity payments, there is still a meaningful cost of resolving claims that never result in payment…Lowering the costs of dispute resolution could lead to considerable savings for physicians and insurers, particularly in specialties with high mean defense costs.”
We are not at all surprised by the findings noted in the article. It makes perfect sense to us that closed medical malpractice claims that resulted in indemnity payments would be associated with higher claims costs because of the greater amount of defense attorneys’ time and other defense expenses incurred when the defense of legitimate and substantial medical malpractice claims are unnecessarily strung out and indemnity payments are unnecessarily delayed.
Just because claims costs are incurred with regard to medical malpractice claims that ultimately do not result in indemnity payments does not mean that those medical malpractice claims were frivolous. There are many reasons why an indemnity payment may not have been made, including if the medical malpractice claimant voluntarily withdrew or dismissed the claim because of the deleterious effects of the stress and enormous costs associated with continuing to litigate a legitimate medical malpractice claim, a medical malpractice jury may have believed that medical malpractice occurred but found in favor of the medical malpractice defendants due to sympathy for the defendants (defense attorneys train medical malpractice defendants how to be appear as sympathetic as possible before juries), the medical malpractice claimant may have achieved something more important to the claimant than obtaining money such as a public acknowledgement of the medical malpractice and an apology from the medical malpractice defendant or a change in procedures or protocols to avoid incidences of similar medical malpractice events in the future, etc.
No one can take issue with the last finding in the article that could be stated more broadly: that lowering the costs of dispute resolution for all parties to legitimate and substantial medical malpractice claims could lead to savings for everyone involved.
When medical malpractice events cause substantial losses, injuries, and/or damages to you or a loved one, you should promptly consult with a medical malpractice attorney to learn about your legal rights and responsibilities.
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