More than half of liability claims in Massachusetts end up being dropped

Attorneys find their cases are weaker than they first believed as lawsuits proceed, analysis shows.

By Alicia Gallegos — Posted Aug. 8, 2011

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Nearly 60% of liability claims against medical professionals in Massachusetts are dropped by plaintiffs during litigation, leading to significantly wasted defense costs and unnecessary distress for doctors, a study shows.

The report, published in the July issue of Health Affairs, analyzed 3,695 lawsuits against physicians, hospitals and other health care professionals filed between 2006 and 2010. According to the findings, 58.6% of claims were abandoned by plaintiffs, 26.6% were settled and 14.8% were adjudicated.

"When you're talking about half of all claims disappearing, that seems like a huge phenomenon," said study author Dwight Golann, a law professor at Suffolk University in Boston and board member of Coverys, the largest medical liability insurer in Massachusetts. "What I found is that plaintiffs tend to hang on to claims until the end of the case."

Lingering claims equal big expenses for physicians and others defending medical negligence suits. The average cost of a dropped claim was $25,735, the study said. The average cost for settled claims was $39,901 and $84,375 for adjudicated cases.

Golann said the average defendant in the study waited almost three years before a claim was dropped. That's a significant period that doctors are burdened with "a claim hanging over their head," he said.

The study's results are not surprising, said Almor M. Afonso, vice president of claims for Coverys, formally ProMutual Group. Insurers often wonder why so many claims are abandoned by plaintiffs, he said.

"It's definitely a trend that we've seen for many, many years," he said. "The financial impact is very significant."

The study's findings are similar to previous research on medical liability cases nationwide.

A 2009 Physician Insurers Assn. of America analysis found 64.2% of claims were dropped, dismissed or withdrawn. Fewer than 1% of claims resulted in plaintiff verdicts. The analysis found the average cost of resolving a medical liability case in 2009 was $324,969, a rise of 13.9% from 2000. Defense payments in 2009 averaged $47,937, an increase of more than 65% from 2000.

Reasons for dropped claims

As part of study, Golann interviewed attorneys and insurance companies about the reasons behind dropped claims. One common reason was that plaintiffs acquired more information during the course of a lawsuit that weakened the claim. For example, a medical record may suggest a required treatment step was not taken, but a defendant may later testify in a deposition the step was completed but not recorded.

Other causes for dropped claims include medical literature related to the claim changing or media reports that decrease the validity of a treatment involved in the claim. A plaintiff's medical condition may improve, reducing the size of a potential verdict, the study found. Attorneys also may find the initial investigation was incomplete or a patient was not as forthcoming about his or her experience as originally believed.

It's in the best interest for plaintiff and defense attorneys to more openly exchange information at the beginning of a case to resolve litigation sooner, Golann said.

"If a case is going to be dropped, the plaintiff has an actual interest in knowing that quickly and so does the defendant," he said. "This is one of the few areas where they could cooperate."

Golann recommends insurers and hospitals adopt procedures that encourage attorneys to discuss the merits of cases more candidly. Such reforms would reduce the frequency and duration of dropped cases and decrease legal costs, he said.

Coverys will launch a pilot program in August focusing on more cooperation among insurers and plaintiffs' attorneys, Afonso said. The program will strive to resolve valid claims before lawsuits are filed.

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External links

"Dropped medical malpractice claims: Their surprising frequency, apparent causes, and potential remedies," Health Affairs, July (link)

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