Why Is It So Hard to Find Quality Medical Malpractice Verdict Data?

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Medical malpractice practitioners on all sides are familiar with the theories and arguments for and against “tort reform.” The basic premise in support of tort reform is that high verdicts in medical malpractice cases lead to defensive medicine, an outflow of qualified providers from the market, and increased insurance costs passed on to consumers. The opposition counters that insurance costs are increased because of investment decisions; that there is no real “crisis;” that reform is a euphemism for denying a right to a jury trial; and that the real incidence of malpractice is under-reported and under-compensated.

I will not take a position in this article on the merits of the debate. Rather, I raise the question of why, in 2014, quality data regarding the true frequency and severity of malpractice verdicts is missing. In an era of incredible “big data,” the medical malpractice practitioner should ask, “Why are there no accurate, reliable, and statistically valid measurements of malpractice verdicts by subject and jurisdiction?”

A Lack of Information

The problem: “There is no comprehensive, national repository of information on medical malpractice claims. The source that comes closest is the National Practitioner Data Bank of the Health Resources and Services Administration (HRSA), but it has important limitations.” National Costs of the Medical Liability System, Mello, MM, Chandra, A, Gawande, AA, Studdert, DM, Health Affairs, September 2010, vol 29, no. 9 1569-1577.

It is curious that no legal academic, legal publisher, insurance company or industry, medical professional society, or court system has attempted to compile a realistic, publicly available report of the frequency with which medical malpractice cases are tried to verdict, the number of verdicts for the defense, the number of verdicts for the claimant, and the size of the awards. While some academics have attempted to mine the reported medical malpractice data to compile nationwide statistics, the data is small, not broken down by jurisdiction or subject matter, and infrequently updated. By a combination of PubMed, Google, and WestlawNext search, I found that the last academic report was published by professor Neil Vidmar in 2009. Juries and Medical Malpractice Claims: Empirical Facts Versus Myths, Vidmar, N, Clin Orthop Relat Res, 2009 Feb; 467, 367-375. Notably, Professor Vidmar relied on data from 2001.

The cynic argues that there are multiple reasons why verdicts are not reported in the form of comprehensive and statistically valid data. One is, simply, that defense verdicts are boring. Another is that no one has yet come forward with a uniform system of reporting verdicts, judgments, settlements, arbitration awards, remitturs, additurs, and appellate dispositions. In addition, the lack of transparency benefits each of the medical malpractice players:

• Claimants' lawyers benefit from advertising the positive results (e.g., “The McCracken Firm has helped injured plaintiffs garner more than $1 Billion in medical malpractice awards.”).
• Claimants' lawyers benefit from advertising how difficult it is to win, in order to justify contingency fee levels.
• Tort reform advocates on both sides of the debate can use the opacity created by lack of statistics to their advantage.
• Defense lawyers benefit from lack of advertising about their losses.
• Courts benefit from opacity in explaining to potential jurors the value of civil jury service.
• The professional liability insurance industry benefits in marketing and sales.
• The professional societies benefit from being able to justify membership levels for action committees.
• Politicians benefit from the debate because they can use it to appeal to core constituencies.

Of course, what is lost in the murkiness of the current system is the predictability, reliability, and reversion to the mean ' assuming that each and all are goals of the civil justice system.

The Data Sources

Ironically, with each passing day we have more access to data regarding medical malpractice claims and verdicts than ever before. Insurance companies and professional societies make “closed claims” databases available to the public. See, e.g., PIAA Data Sharing Project (https://www.piaa.us/) and the American Society of Anesthesiologists Closed Claims Project (http://bit.ly/1mGoU48). Unfortunately, these types of databases have obvious statistical and qualitative shortcomings, such as a lack of uniform reporting, no peer review or quality assurance for under-reporting or over-reporting, and a focus on settled claims and not on cases tried to verdict. But, the data is available for mining and analysis, with relative ease.

Likewise, many state licensing boards have begun to require doctors to report “awards or settlements,” typically for 10 years at a time. Many trial courts also are moving to electronic case management systems with increased data collection.

The Internet also gives successful practitioners a forum to announce their achievements. Unfortunately, a lot of the information contained on individual websites lacks precision and quality ' for instance, there may be no information regarding the date of the reported award ' but the data is available for mining.

Virtually all news outlets, particularly those focused on the legal industry, have an online presence. Websites for these newspapers typically provide a searchable database of local verdicts, and sometimes of settlements, whether in the form of news articles or in the form of self-reported verdicts.

And, last, the traditional online legal research databases have more competition from new upstarts. These legal databases provide access to a wealth of verdict information, typically searchable by any number of parameters.

With this background, the question is, why does no one reliably and frequently compile this data? Even with the amount of information out there, it would seem that a statistically valid meta-analysis would be possible. By using an algorithm to monitor each of the sources described above, I believe it would be possible to compile, extrapolate using statistically valid methods, and report by state: 1) the number of cases filed; 2) the number of cases tried; 3) the verdict (plaintiff and defense); and 4) the ultimate recovery (if affected by any court).

Such reporting would be to the benefit of all participants in the civil medical malpractice system, and would help elevate and improve the quality of the “tort reform” debate. It would enable insurance companies and practitioners to evaluate reliably their cases and their chances of success. It would help courts manage the process of medical malpractice litigation in an open and transparent manner. And it would help litigants make informed choices on whether to bring a claim, whether to defend a claim, and whether to settle a claim.

A Challenge

Our current methods of compiling and reporting medical malpractice verdicts are archaic and opaque. Yet, in an era when algorithms and computing power are used to trade stocks in nanoseconds, creating a better system for reporting verdicts and settlements seems more than possible.

Is there someone out there willing to take the available data and analyze and report it for the benefit of society at large?

Eric Frisch, a member of this newsletter's Board of Editors, is a partner in the Atlanta-based law firm of Carlock, Copeland, & Stair, LLP. Since 2001, he has focused his practice on the defense of health care professionals in liability claims and on health care regulatory defense. He has tried over 20 jury trials to verdict and handled numerous health care-related cases on appeal, including tort reform-related issues.

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