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Public Citizen on medical malpractice

Public Citizen released a study on medical malpractice, calling claims of a problem a "hoax," and you can guess the conclusions. The report repeats all the standard mistakes that we've criticized in the past:

  • It uses medians to measure the issue of judgment growth. Unfortunately for doctors, insurance rates reflect expected means, which are several times higher. Two years ago, we noted how even liberal anti-reformer Kevin Drum, speaking of a different anti-reform study, wrote the use of medians rather than averages "is so obviously the wrong statistic to use in this case that there must be some kind of axe to grind here."
  • To measure "real" verdict sizes, the study uses an artificially high deflator instead of the standard one, dampening the effect, but consistently characterizes that deflator as "adjusted for inflation", rather than "adjusted for increases in medical costs." Of course, part of the increase in medical costs are medical malpractice costs. Adjusted for inflation in gasoline expenses, gasoline prices have been constant between 2002 to 2007. More importantly, doctors pay for malpractice insurance with real dollars, not medically deflated dollars.
  • The study starts its cut-off date at 1991, but fails to note that reformers thought malpractice costs were too high in 1991. From 1975 (the earliest data available) to 1991, medical malpractice costs increased 2.2 times as fast as GDP, while medical inflation grew as fast as GDP.
  • The study makes a big deal of some declines that began after 2003, but fails to note the large increases from 1991 to 2003 that prompted the renewed complaints.
  • The page designer very effectively used a lot of nifty tricks to dampen the visual effect of increases over time: big thick lines and points that obscure where the points actually are; in some graphs, there is an artificially-elongated Y-axis with lots of white space to dampen the trend line.

  • Even with all of these dampening adjustments, the actual data in the Public Citizen report shows a huge increase in median judgment from 1991 to 2005 (and an even larger one from 1995 to 2001) consistent with what reformers are claiming. Solution? Just caption the graph "Judgments Constant When Adjusted For Inflation [sic]" even when the graph shows nothing of the sort, and announce that reformers are committing a "hoax."

  • The study talks of "million-dollar judgments", but adjusts it for inflation, while eliding whether it's talking about "million-1991-dollar judgments" or "million-2005-dollar judgments." If it's the former misleading figure, as one guesses given the consistency in statistical choices in the rest of the paper, the "million-dollar judgments" are really two-million-dollar judgments because of the artificially high deflator used.

  • By focusing on payments to patients, Public Citizen ignores the largest part of the malpractice cost, which is payments to attorneys, which has been rising even faster than payments to patients.

  • The study conflates "medical errors" with "medical malpractice", even though the two are different. Of course, the study trots out the discredited Institute of Medicine statistic, which has become wildly popular through repetition if not accuracy. (It's ironic that many of the anti-reformers who parrot the IOM statistic criticize Towers Perrin for its annual measurements of tort costs, even though Towers Perrin is forthright about their study's narrow scope and limitations.)
  • And, of course, the report does nothing to address the major complaint of doctors regarding the randomness and inaccuracy of the malpractice litigation system.
  • The study repeats the standard trope of "small percentage of doctors responsible for large percentage of malpractice" without making any adjustments or cross-checks to see if these numbers are within the range of risk-adjusted random statistical chance. Again, I noted this issue two years ago (Jan. 6, 2005.)

That said, some of the report's proposals are unobjectionable: a national mandatory adverse event reporting system; computer physician order entry systems; JCAHO guidelines to prevent wrong site surgery; improving state medical board web sites and funding and staffing. Other proposals, such as stricter restrictions on workweeks, may be counterproductive in the short and/or long run (Dec. 19).

Doctors want safety for their patients, and most doctors make considerable personal sacrifices to achieve those results; if Public Citizen really cares about patient safety, rather than the amount of money attorneys extract from society, one wonders why they preface patient-safety reforms with offensive insults of doctors for having legitimate concerns about a broken malpractice system. The sensible fixes of patient safety and the sensible fixes of malpractice litigation are neither exclusive nor at cross-purposes.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.