Medical Malpractice

Report: Medical Malpractice is Not

A 'Frivolous' Matter

Accusations of Lawsuit Abuse Fall Flat

By Steve Rensberry
RP News

    EDWARDSVILLE, Ill. - (RP NEWS) - 7/21/2021 - Nearly 10 percent of patients with symptoms caused by major vascular events, infections or cancers will be misdiagnosed in the United States, with more than half of those suffering death or permanent disability as a result. That's the conclusion of a 2020 study by John Hopkins University School of Medicine Director Professor David E. Newman-Toker, along with others involved with the analysis. (1)

    It's a sobering statistic, as are a long list of others involving medical malpractice cited in the latest report by the national consumer organization, Center for Justice and Democracy (CJ&D). See: Medical Malpractice Briefing Book.

    "Among the 15 diseases analyzed, spinal abscesses was the disease most often missed (62.1%). More than one-on-four aortic aneurysms and dissections have a critical delay in diagnosis (27.9%) and more than one in five (22.5%) lung cancer diagnoses are also meaningfully delayed," the John Hopkins study notes.

    Research by the Emergency Care Research Institute (ECRI) in 2020 points to similar results, concluding that "missed and delayed diagnosis" were a top patient safety concern. Diagnostic errors contributing to death were found in about 10 percent of autopsies, they said, leading to 40,000-80,000 deaths annually. Based on outpatient studies, approximately 1 in 20 adults experience a diagnostic error. (2)

More insights from the CJ&D's briefing book:

  • Despite the Emergency Medical Treatment and Labor Act (EMTALA), which requires emergency departments to treat emergency patients regardless of ability to pay, hundreds of violations of the Act are seen each year. An analysis of 10 years of EMTALA violations (2008-2018), showed more than 4,300 violations involving 1,682 hospitals, roughly 1/3 of the nation's hospitals. (3)
  • Approximately 1 in 12 errors involved women who were pregnant or in labor, while 1 in 7 involved people who were having a mental health crisis, including thoughts of suicide. "Yet experts say the raw numbers belie both the scope and severity of the problem they see. That's because enforcement of the law depends on someone filing a complaint. Although anyone can file a complaint, it's most often a doctor, nurse, or hospital administrator," the report notes.
  •  A study by Professor Ziad Obermeyer of Harvard Medical School, et al, of early death after discharges from emergency departments, using U.S. insurance claims data, shows a significant number of deaths from people on Medicare soon after discharge. "In this national analysis, we found over 10,000 Medicare beneficiaries each year died within seven days after being discharged from emergency departments, despite mean age of 69 and no obvious life limiting illnesses," the report stated. (4)
  •  A 2019 study by University of Michigan School of Public Health candidate Jun Li et al, looked at the amount of data available made available by the U.S. Centers for Medicare and Medicaid Services on 1 million U.S. doctors. Its conclusions: Three quarters of clinicians had no information about their quality of care, 99 percent had no data tied to individual job performance, and lax reporting requirements do not require that every outcome be considered, meaning clinicians may be selective in which cases to submit information on. (5)
  • Diagnostic errors are the most common and costly errors, according to an 2020 analysis by Coverys Inc. of data from 2010-2019, with death and high-severity injury making up approximately 52 percent of events and 74 percent of indemnity paid; emergency department-related events accounts for 66 percent of indemnity paid.

    The bottom line, as stated in Part I of the CJ&D's briefing book, is that medical malpractice litigation, and the cases that are filed on account of it, are not fundamentally "frivolous," despite the allegations.

    As stated in the book: "According to averages calculated from the most recent data release by the National Center for State Courts (2019): 1) Medical malpractice cases represented only 0.15 percent of state civil caseloads in 2019. This rate is consistent with NCSC data from the previous seven years. 2) Medical malpractice cases represented only 3.9 percent of state tort caseloads in 2019. This rate is consistent with NCSC data from the previous seven years."

    A 2014 study, "Medical Harm: Patient Perceptions and Follow-up Action," by Johns Hopkins University School of Medicine Professor of Surgery Martin A. Makary and others, showed lawsuits being filed following patient harms in just 1 out of every 5 cases, or 19.9 percent. "This is similar to the Harvard Medical Practice Study, which reported an estimated ratio of adverse event to malpractice claim of 7.6 to 1. Other studies have estimated that as few as 2% - 3 % of patients pursue litigation. These findings all suggest that the vast majority of patient harms never result in a lawsuit." (6)

    The argument that patient lawsuit increase medical and insurance costs also is weak, given the data.

    According to the group Americans for Insurance Reform, claims per physician were at their lowest level in four decades in 2016, when adjusted for medical care inflation. When adjusted according to the Consumer Price Index, claims are at their lowest since 1982. (7)

    “Even aside from COVID-19, the briefing book includes a number of new studies that undercut the medical industry’s principal argument for so-called ‘tort reform’ laws: cost savings. It is clear that health care and insurance costs fail to decrease when ‘tort reforms’ are enacted, meaning there is no reason for patients to lose their legal rights.” CJ&D Executive Director Joanne Doroshow stated in a March 2021 press release.


1) Medical Liability Monitor (Feb. 2021) "Rate of diagnostic errors and serious misdiagnosis-related harms for major vascular events, infections, and cancers: toward a national incidence estimate using the 'Big Three.'" ECRI Executive Brief, "Top 10 Patient Safety Concerns 2020 (March 2020).

2) ECRI, "Diagnostic Errors: Why Do They Matter, and What Can You Do?" (2019).

3) Brenda Goodman and Andy Miller, "Deprived of Care: When ERs Break the Law," WebMD and Georgia Health News, Nov. 29, 2018.

4) Ziad Obermeyer et al, "Early death after discharge from emergency departments: analysis of national US insurance claim data," BMJ, Feb. 2, 2017.

5) Lena M. Chen, Anup Das and Jun Li, "Assessing the Qualithy of Public Reporting of US Physician Performance," Jame Intern. Med, May 6, 2019; University of Michigan, "System Grading Doctors is Inefficient, Needs Revisions," May 7, 2019; Lisa Rapaport, "U.S. government website for comparing doctors lacks data on most MDs," Reuters, May 6, 2019.

6) Heather G. Lye et al, "Medical Harm: Patient Perceptions and Follow-up Actions," Journal of Patient Safety, November 13, 2014.

7) Americans for Insurance Reform, "Stable Losses/Unstable Rates 2016" (November 2016).