WhiteCoat (and later Walter Olson) directed me to this op-ed in the Pittsburgh Post Gazette by Gerald F. O’Malley, a Philadelphia-based emergency physician:

… Governor Rendell recently declared that Pennsylvania’s malpractice lawsuit abuse crisis is over. Nothing could be further from the truth.

Rendell’s announcement comes on the heels of the Pennsylvania Supreme Court’s annual Malpractice Filings Report, but the court’s numbers tell only a part of the story.

The Court reports only the number of cases filed — not the number of litigants within those cases.

Most cases of alleged medical malpractice include multiple defendants as personal injury lawyers typically sue everyone whose name appears anywhere on the patients’ chart.

The Court reports a statewide decrease of 41 percent in malpractice filings in 2008 — but that is comparing the 2008 case filings against a “baseline” of cases filed in 2000-02. The meaningful statistics show 2008’s numbers are only a 3 percent decrease from cases filed in 2007. The 3 percent number becomes irrelevant when the multiple litigants within each case are factored in.

You can read the Pennsylvania Supreme Court’s Annual Malpractice Report (PDF) and Governor Rendell’s press release.

Dr. O’Malley’s argument is a complete mess.

First, his column references no numbers, figures or data at all, not even to support his primary argument that the number of defendants in medical malpractice cases has increased. I do not even know where he could find such data, as the number of defendants is not recorded by the Supreme Court’s medical malpractice statistics.

Second, the number of defendants in a case has little to do with the decisions of the plaintiff’s attorney or the plaintiff. By law, before a patient in Pennsylvania can sue any healthcare provider, their attorney must obtain a certificate of merit from a duly licensed and qualified physician with regard to each defendant; doctors and hospitals can’t just be added willy-nilly.

Just as importantly, as a practical matter, plaintiff’s lawyers must add every health care provider who could be responsible — if they do not, then the defense lawyer for the health care provider most responsible for the harm will inevitably start pointing their fingers at everyone else. In such a situation, the “additional defendant” is in the case by name only, and is dismissed as soon as the “real” defendant is willing to stipulate that they will not point the finger at them.

Third, the number of defendants in Pennsylvania malpractice cases does not play a significant role in increasing or decreasing the insurance premiums paid by doctors and hospitals. Adding a defendant does nothing to increase plaintiff’s damages (and thus the size of the settlement or verdict), and it generally makes it harder to prove liability and win the case, because it makes the whole trial more complicated.

In short, Dr. O’Malley is making an issue out of nothing. Indeed, Dr. O’Malley practically admits as much in his article by not recommending anything that could be done to fix this “problem.” His argument is thus as meaningless as it is baseless.

But let’s talk about some of the facts here.

First, the most comprehensive study done on medical malpractice verdicts by a team of researchers at Harvard Medical School found that three-quarters of all plaintiffs who won had indeed suffered injury to due medical malpractice, and that one-quarter of those plaintiffs who lost had also suffered medical malpractice.

Second, the malpractice filings report shows that more than 80% of plaintiffs in Pennsylvania lose at trial.

Keep those two facts in mind: more than 4 out of 5 plaintiffs lose, and those that do win should win.

Yet, Dr. O’Malley notes:

Since May 2002, when Act 13 was passed requiring physicians to self report when sued for malpractice, more than half of the state’s 25,000 doctors have been sued. The Pennsylvania Medical Board, an agency of state government, found that only a fraction of all malpractice cases merit any action which is an indication that rampant medical liability lawsuit abuse exists in Pennsylvania.

I don’t know the polite way to say this: Dr. O’Malley has no idea what he is talking about.

You can read the Pennsylvania Medical Board’s mission statement yourself. The Board “regulates the practice of medical through the licensure, registration and certification of members of the medical profession in the Commonwealth of Pennsylvania.” It has no interest in, and makes no findings with regard to, medical malpractice.

Indeed, the only time the board and medical malpractice liability intersect is when, by way of malpractice, a doctor shows himself to be “an immediate danger to the public health and safety.” You can read some of the recent disciplinary actions here. Other than “immediate danger,” the board generally only takes “action” when a doctor, for example, is “convicted of a felony in a federal court” or “failed to report information regarding disciplinary action by a healthcare licensing authority of another state.”

But maybe the Board of Medicine should become more involved in medical malpractice. Here’s a critical finding from the most recent National Practitioner Data Bank report:

Physicians with at least two Malpractice Payment Reports were responsible for the majority of Malpractice Payment Reports for physicians: Approximately 33.2 percent of the 146,309 physicians with Malpractice Payment Reports had 2 or more such reports. These 48,566 physicians had a total of 138,199 Malpractice Payment Reports. This was 58.6 percent of the 235,942 Malpractice Payment Reports in the NPDB for physicians.

A few physicians were responsible for a large proportion of malpractice payment dollars paid: The 1 percent of physicians with the largest total payments in the NPDB were responsible for about 11.7 percent of all the money paid for physicians in malpractice judgments or settlements reported to the NPDB. The 5 percent of physicians with the largest total payments in the NPDB were responsible for just under a third (31.4 percent) of the total dollars paid for physicians. Eleven percent (11.6 percent) of physicians with at least one malpractice payment were responsible for half of all malpractice dollars paid from September 1, 1990 through December 31, 2006.

In Pennsylvania, generally half of the payments from the CAT / MCARE fund (which uses taxpayer funds to provide additional malpractice insurance) are made to settle claims against just 2% of doctors.

Fact is, there is a small minority of doctors who are simply terrible at their jobs, just as there are a small number of incompetent lawyers, bank tellers, teachers, cops, engineers, office managers, and every other occupation. In most occupations, though, these people are weeded out over time, but in the distorted marketplace of medical malpractice insurance, the taxpayer foots the bill to keep these bad doctors in practice. That’s why physician insurance premiums are so high: to pay for the claims brought against a tiny minority of incompetent doctors who repeatedly injured patients.

Truth is, filings and payouts in medical malpractice in Pennsylvania have declined dramatically, and you have to go back 10 years to find out the last time so little was paid to resolve claims. Malpractice reform is “working” even under the health care providers’ and insurance companies’ definition: far less is being paid to injured patients than was in the past, even as the population grows.

So how did that happen? We will talk about that in the next post, going into the three major changes made by MCARE: tightening the rules for qualifying experts, restricting the venue in which plaintiffs can file suit and requiring certificates of merit prior to filing suit.