By Carl T. Bogus

Frivolous and junk lawsuits are threatening medicine across the country, we are told. State legislatures from Maryland to Florida are considering legislation to address the problem. Malpractice premiums are skyrocketing, driving physicians out of practice. In some areas, lawsuits have forced so many doctors out that expectant mothers no longer can find obstetricians willing to deliver their babies.

At least that is what we have been led to believe.

The specter of spiraling, unjustified lawsuits forcing dedicated physicians from practice is alarming indeed. But it's a false image.

There are problems in the health care industry, to be sure. But before making a diagnosis, a good doctor examines the facts, and we should do the same. In fact, a lot of data bear upon the relationship between malpractice litigation and the health care system, and little of it supports conventional wisdom. Moreover, trying to cure what ails the system by curbing lawsuits would make the health care system more dangerous.

First, there is no explosion in medical malpractice litigation. Data compiled by the National Association of Insurance Commissioners show that, from 1995 to 2000, new medical malpractice claims declined by about 4%.

Second, weak cases seldom succeed. The popular image holds that jurors are overly sympathetic to patients with unfortunate medical outcomes regardless of whether anyone is to blame. However, research on juror attitudes shows nearly the opposite.

Jurors tend to be wary

More than 80% of people beginning jury duty say they believe there are too many frivolous lawsuits, according to researchers Valerie Hans and William Lofquist. Only a third believe most plaintiffs have legitimate grievances. Those are difficult predispositions to overcome, and, in fact, most plaintiffs do not.

The rate of victories for plaintiffs in medical malpractice trials is about 30%, lower than in any other category of litigation, according to a 1996 study by the National Center for State Courts. To win, plaintiffs need strong evidence.

Studies show a high rate of agreement between jurors and judges, and even neutral medical experts, on the question of whether a plaintiff was injured as a result of malpractice. A study in the Annals of Internal Medicine found that plaintiffs' win rates do not increase with the severity of injury.

When jurors are convinced that malpractice is the culprit, they can render large verdicts. About 15% of such verdicts now exceed $1 million. However, the trial judge and appellate courts are required to reduce excessive awards. Several studies show that the total sums of jury verdicts exceeding $1 million are paid in 25% or fewer cases.

Wall Street's contribution

What caused soaring medical malpractice insurance premiums? A key factor appears to have been the downturn in the stock market, only recently reversed, which reduced insurance company reserves and investment income. Medical malpractice insurance in four states was thrown into chaos when one of the largest insurers, The St. Paul Companies, stopped writing malpractice policies. But St. Paul's problems resulted largely from investment losses, including at least $70 million in Enron.

The unpleasant reality is that there is too much medical malpractice. According to the Institute of Medicine, 44,000 to 98,000 hospital patients die every year from preventable accidents, and many others suffer severe and permanent injuries.

Some malpractice is inevitable. Doctors are mortals; even the best make mistakes. About 5% of physicians account for the majority of all medical malpractice claims, according to reports filed with the National Practitioner Data Bank. Unfortunately, the medical disciplinary system is weak. Among doctors who have paid five or more malpractice claims, only 13.3% have been subject to professional discipline, according to Public Citizen's analysis of the data.

The most privileged among us may not have to worry about being treated by a doctor with a bad record. But the rest of us do. The civil justice system is a flashlight shining into the dark corners of the medical delivery system. Let's not dim the bulb.

Carl T. Bogus is a professor at Roger Williams University School of Law in Bristol, R.I., and author of Why Lawsuits are Good for America.