Frivolous Malpractice Cases Are Less Common Than Was Feared

Abigail Zuger, MD

Journal Watch. 2006;5(6) 

In this study, baseless lawsuits contributed relatively little to direct litigation costs.

Summary and Comment


Some critics contend that out-of-control health care costs and malpractice premiums are driven largely by "frivolous" malpractice suits launched by greedy lawyers and patients. How accurate is this claim? Five large malpractice insurers allowed unblinded physicians to review 1452 cases that were settled between 1984 and 2004 in the specific areas of obstetrics, surgery, missed or delayed diagnoses, and medication errors.

The reviewers felt that 563 cases (39%) either did not involve physical injury to the plaintiff (46 cases) or culpable error on the part of the defendants (517 cases). Of these cases, 151 (27%) resulted in payment. In contrast, of 889 cases in which culpable error was identified, 73% resulted in payment. Cases without error were more likely to go to trial than cases with error. When non-error claims were paid (whether by out-of-court settlement or by verdict), payments averaged 40% less than those for claims involving error. The costs associated with cases without error accounted for 13% to 16% of total litigation costs.


Studies have yielded widely different estimates of the frequency and expense associated with frivolous medical litigation. This study — larger than most, but unblinded and including only certain kinds of cases — indicated that baseless lawsuits contribute relatively little to direct litigation costs (although the indirect costs of clogging the courts with these cases is more difficult to ascertain). The authors also point out that more than 25% of cases with culpable medical errors went uncompensated, suggesting that the present system might be erring far more on the side of medical defendants than is generally appreciated.


Studdert DM et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006 May 11; 354:2024-33.

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