The Two Percents: Disparities in Medical Malpractice Trials

Heart-warming stories of miracle babies’ triumphs over sickle cell disease, nephritis being magically cured overnight, or patients miraculously waking from decade-long comas flood the news. But what about those who aren’t so lucky? Pushed aside from the limelight we find the victims of the healthcare industry. $55.6 billion is awarded to claimants of medical malpractice as a corrective measure for the inevitable shortcomings of the healthcare industry, amounting to two percent of overall spending– its effects, however, are much greater than this [1]. As we will later see, this imbursement does not fall equally upon victims, nor does the fault. In the current tort-based framework of compensation, only two percent of victims file for compensation. On the other side of the bill, only two percent of practicing physicians are responsible for over forty percent of medical malpractice lawsuits. From this, we may gather the U.S. method of medical malpractice reimbursement is a failure as a reliable tool of compensation and an effective deterrent in preventing further malpractice. To correct this, we must look to countries who spend less on their medical malpractice compensation systems, yet turn out higher compensation rates and lower medical malpractice rates over time.

Black Americans, middle-aged women, and infants disproportionately make up medical malpractice victims in the U.S [2]. How does this translate in the courtroom? As mentioned, only two percent of victims of medical negligence– the most prolific form of medical malpractice– file malpractice claims. The vast majority of claims are filed by those who are not victims of negligence [3]. Notably, the number of those not victims of negligence and filing malpractice claims– approximately 98 percent of claimants– has decreased over recent decades [4]. This consistent decrease has helped lower the aggregate spending of the healthcare industry, taking into account the severity of this problem in prior years. In 1984, for example, the number of malpractice claims filed by patients who did not experience negligence outnumbered legitimate claims of negligence ten to one [3, 4]. Even within the small percentage of legitimate claims, however, we find an immediate imbalance. The poor and elderly comprise the lowest number of legitimate claimants, though they are often the most in need of medical care and the most vulnerable to the effects of medical malpractice [5]. Thus, even before stepping foot in the courtroom, victims of the healthcare industry are at odds with the system intended to compensate them. The situation does not get much better once the trial commences. Regardless of whether the evidence presented in favor of the claimant is strong, weak, or unclear, the health provider will win the majority of medical malpractice trials [6]. Interestingly, evidence for an injury in favor of the victims will, on average, work against them, as such evidence often warrants lower compensation for injuries with scarce evidence, even if malpractice did cause the injury in question; in a number of cases, it may be strategic not to present evidence at all [7].

Concerning physicians, these disparities have remained within a small population. Over ninety percent of physicians practice medicine for years without being accused of medical malpractice claims [8]. This is largely due to defensive medicine, which similarly raises the aggregate spending of the healthcare industry [8]. While nearly all physicians engage in some sort of defensive medicine, only a small percentage of them are to blame for the growing malpractice premium rates: two percent of all physicians in the U.S. are responsible for forty percent of all malpractice lawsuits [9]. Additionally, most malpractice insurance does not experience-rate physicians within their respective specialties, so when malpractice premiums increase for those two percent of physicians, they increase for every other physician in the specialty– even those who have never before been accused of medical malpractice [4, 9].

How do we fix a system with as many shortcomings as that of the malpractice compensation system? The short answer: we don’t. Instead, we choose from a myriad of alternative systems to replace it with, some adopted in countries with significantly better healthcare than ours. Sweden, Finland, New Zealand, Quebec Canada, and Australia all use the famous no-fault malpractice compensation scheme to compensate victims of negligence, and all spend less to produce greater health outcomes for their citizens [10]. More recently, the U.S. has begun to implement a new sort of tool to compensate for medical malpractice to correct these differences, called the Communication-And-Resolution Program [9]. The results have been less than satisfactory.

While costs of defensive medicine decreased in the hospitals where the system was implemented, its effect on the rate of paid claims, compensation costs, and total liability costs were minimal [10, 11]. To ensure victims of the healthcare industry are properly compensated, we must revamp the system that grants such compensation and follow in the footsteps of Canada, Australia, and others in taking up a new system from the ground up.


1. Brennan, T. A. (2004). Incidence of adverse events and negligence in hospitalized patients: Results of the Harvard Medical Practice Study I. Quality and Safety in Health Care, 13(2), 145–151.

2. Feldstein, P. J. (2019). Health Policy Issues: An Economic Perspective. Health Administration Press.

3. Hendee, W. R. (2001). To err is human: Building a safer health system. Journal of Vascular and Interventional Radiology, 12(1).

4. Kachalia, A., Sands, K., Niel, M. V., Dodson, S., Roche, S., Novack, V., Yitshak-Sade, M., Folcarelli, P., Benjamin, E. M., Woodward, A. C., & Mello, M. M. (2018). Effects of a communication-and-resolution program on hospitals’ malpractice claims and costs. Health Affairs, 37(11), 1836–1844.

5. Mello, M. M., & Brennan, T. A. (2009). The role of medical liability reform in Federal Health Care Reform. New England Journal of Medicine, 361(1), 1–3.

6. Paik, M., Black, B. S., Hyman, D. A., Sage, W. M., & Silver, C. M. (2012). How do the elderly fare in medical malpractice litigation, before and after tort reform? evidence from Texas. SSRN Electronic Journal.

7. Peters P. G., Jr (2009). Twenty years of evidence on the outcomes of malpractice claims. Clinical orthopaedics and related research, 467(2), 352–357.

8. Studdert, D. M., Mello, M. M., Gawande, A. A., Gandhi, T. K., Kachalia, A., Yoon, C., Puopolo, A. L., & Brennan, T. A. (2006). Claims, errors, and compensation payments in medical malpractice litigation. The New England journal of medicine, 354(19), 2024–2033.

9. Studdert, D. M., Spittal, M. J., Zhang, Y., Wilkinson, D. S., Singh, H., & Mello, M. M. (2019). Changes in practice among physicians with malpractice claims. New England Journal of Medicine, 380(13), 1247–1255.

10. van Ryn M. (2002). Research on the provider contribution to race/ethnicity disparities in medical care. Medical care, 40(1 Suppl), I140–I151.

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