Permanent disability - not merit - wins malpractice cases, study finds.

The most reliable indicator of a medical malpractice claim's success is whether the patient has been left permanently disabled, according to researchers at the Harvard School of Public Health. But the study used such a small sample that critics are skeptical of its findings. (Troyen A. Brennan et al., Relation Between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation, 335 New Eng. J. Med. 1963 (1996).)

The researchers studied 51 malpractice claims filed in New York state in 1984. Based on their analysis, the claims were divided into three types: (1) cases in which a plaintiff was injured by medical treatment but no negligence was found, (2) cases in which a plaintiff was injured by a doctor or nurse and negligence was found, and (3) cases in which the medical treatment did not cause the physical problems a plaintiff alleged.

An example of the third type of these malpractice cases is one where a plaintiff suffers a stroke while hospitalized for an unrelated illness and there is no evidence that the plaintiff's treatment caused the stroke. (Susan Okie, What Wins Malpractice Cases? Wash. Post, Health Section, Jan. 14, 1997, at 7.)

The researchers looked et plaintiffs' medical reports, insurance companies' case summaries, and, in some instances, litigation files to reach their conclusions.

"If the permanence of a disability, not the fact of negligence, is the reason for compensation, the determination of negligence may be an expensive sideshow," the researchers wrote.

By the end of 1995, 46 of the 51 claims had been closed. Researchers found that in those 46 cases,

* 13 plaintiffs were injured as a result of medical treatment, but no negligence was found. Six ended in settlement for the plaintiff with a mean recovery of just over $98,000, an amount that was greatly affected by the settlement amount in one of the cases.

* 9 plaintiffs were injured due to negligence. Five settled for the plaintiff with a mean recovery of just under $67,000.

* medical treatment had not caused the physical problems over which 24 plaintiffs had filed suit. Ten of these were resolved in favor of the plaintiff and 14 for the defense. The mean recovery was just under $29,000.

The researchers also performed statistical analyses to determine what factors predicted payment of these claims. They found that cases involving an injury due to negligence "were no more likely to end in a payment" than cases in which medical treatment had not caused plaintiffs' physical problems.

Indeed, the researchers concluded that the only factor predictive of payment to the plaintiff was permanent disability, and that their results "suggest that the standard of medical negligence performs poorly in malpractice litigation."

The researchers acknowledged several limitations to the study. They said, "It is based on only 46 cases. Our findings could reflect only litigation practices in New York in 1984 and may not be generalizable."

ATLA President Howard Twiggs, while agreeing that the study's sample size was too small, noted that in many cases researchers concluded that malpractice had not occurred but the insurer nevertheless compensated the patient. "After 30 years of practicing law, I can tell you that insurance companies do not pay claims that have no merit," he said.

Dr. Brennan comes into this debate with a known bias," Twiggs said. "He has long advocated a no-fault medical malpractice system in which individual health care providers would not have personal responsibility for the care they give their patients. This study totally supports his call for a no-fault system."

Twiggs also pointed out that a similar study by Mark Taragin published in 1992 in the Annals of Internal Medicine used a much larger sample size--8,231 cases--and came to the opposite conclusion.

Copies of Brennan's study are available by calling the New England Journal of Medicine at [phone]. Copies of Taragin's study are available by calling ATLA's Media Relations office in Washington at (202) 9653-500, ext. 357.