Characteristics of Potential Plaintiffs in Malpractice Litigation

Methods

Potential plaintiffs for malpractice litigation were identified by unsolicited callers to law firms with offices in several midwestern and western states. All incoming calls to each office concerning malpractice over 10 randomly selected days in 1991 were referred to one of the authors for interview. A caller was defined as a person who contacted a law firm during the study period with a malpractice complaint. Potential plaintiffs were defined as persons identified by callers who claimed to have suffered an injury because of the negligence of a health care provider. Three attempts were made to contact callers. If this technique failed, postcards were sent asking them to contact us.

Participating law firms were known to one of the authors and were selected because of their widespread geographic locations and interest in medical malpractice litigation. The six offices surveyed served metropolitan areas ranging from 300 000 to 1 million. The services of one firm with offices in two midwestern cities were advertised on television. This project was approved by the University of Oklahoma Health Sciences Center Institutional Review Board.

Data Collection

Interviews were conducted before any contact occurred between the caller and an attorney in the firm. Consent was obtained over the telephone, demographic data were collected, and several open-ended questions were asked: “What prompted you to call our office now?” “What do you think the doctor (dentist, nurse, and so forth) did wrong?” “What exactly happened to you (your child, spouse, and so forth)?” Health care providers identified by callers were categorized as physicians, dentists, podiatrists, chiropractors, optometrists, and allied personnel. If the caller did not know the specialty of a health care provider, it was obtained from the state licensing board. Registered and practical nurses and nurses' aides were considered one provider group. Information was collected concerning the type of facility in which the alleged injury occurred (private, county, state, or federal), setting (inpatient or outpatient), annual earned income, outstanding medical bills, number of previous attorneys contacted concerning the complaint, and number of previous lawsuits filed (excluding divorce). Nondependent persons with gainful regular income at the time of injury, including those self-employed, were considered employed; all others were classified as unemployed, disabled if receiving a benefit, retired, or a homemaker.

Information was collected concerning the sources of payment for health care costs at the time of injury (private, governmental, worker's compensation, and self-pay). Private medical insurance sources included, among others, Blue Cross/Blue Shield plans, health maintenance organizations, and Champus. Medicare, Medicaid, aid to families with dependent children, and free federal-, state-, or county-funded programs were considered as a single governmentally insured group. In cases of wrongful death, minors, or dependent potential plaintiffs, employment, earned income, litigation history, and outstanding medical bills were considered to be those of the surviving spouse, parents, or legal guardian.

After obtaining a description of each complaint, alleged negligence was classified independently by each author into one or more of 11 categories similar to those previously described [7]: failure to diagnose, medication error, failure to consult, poor documentation, unavailability when needed, failure to inform or educate, failure to properly perform a procedure, failure to properly use equipment or supplies, sexual misconduct, failure to protect a patient, and, for nurses, failure to follow physician orders. Discrepancies were resolved by consensus between the authors.

Callers were asked to subjectively rate primarily named physicians, dentists, and other providers with regard to rapport, availability, ability to inform, and whether they felt appropriate consultation had been obtained. Primarily or secondarily named nurses were rated concerning rapport, availability (that is, the level of monitoring), and calls to physicians. Callers were specifically asked to rate the potential plaintiff's relationship with the provider just before the alleged negligence. A 5-point rating scale ranging from 0 to 4 was used with the worst rapport, availability, and so forth the caller or potential plaintiff had ever experienced with any health care provider defined as the lowest value and the best rapport, availability, and so forth as the highest value. Interviews were completed in an average of 20 minutes. Claims made by callers were not verified by review of medical records nor were disabilities rated that may have resulted from an alleged injury.

Disposition of Claims

Statute of limitation dates, which define the time within which a lawsuit must be filed, were determined by jurisdiction and age of potential plaintiffs at the time of alleged negligence. In cases of nonsurviving minors, dates were determined for surviving claimants. Questions concerning the correct statute date were resolved by an attorney within the jurisdiction.

Each potential claim was followed as it was processed through the law firm. Attorneys were asked to categorize the disposition of claims not filed as lawsuits as follows: imminent or expired statute of limitation date; lack of negligence or causation on the part of health care providers after expert medical review; recoverable damages estimated less than the cost of litigation; lack of malpractice insurance on the part of health care providers; lack of legal survivors to file suit; conflict of interest (for example, potential defendants with personal or professional ties to plaintiff attorneys or firms); inability to find an expert witness; and ethnic or life-style biases (for example, potential plaintiffs with poor jury appeal). Claims filed were followed to determine the type of providers named and how cases were resolved.

Statistical Analysis

Data were analyzed using SYSTAT 5.1 (SYSTAT, Inc., Evanston, Illinois). Categorical data were compared by chi-square analysis. Comparison of proportions from several independent samples was done as described by Fleiss [12]. Tests for differences between several means were done by one-way analysis of variance. A P value less than 0.05 was considered significant.

Results

During the 10-day study 730 callers contacted the six law firms seeking representation in litigation against one or more health care providers. Of these callers, 105 (14%) could not be reached again, 123 (17%) refused to participate or were unable to answer questions coherently, and 502 (69%) were interviewed. Among those interviewed, 356 (71%) were from the Midwest; 127 (25%), from western states; and 19 (4%), from elsewhere. Calls were not equally distributed among offices. The two firms advertising on television averaged 15 calls per office per day. In comparison, only five calls per day were made to offices that did not advertise (P = 0.01).

Men and women called about themselves in equal numbers (Table 1). Mothers more often called concerning their children than did fathers (23% compared with 12%; P < 0.001), and husbands more often called concerning their wives than did wives concerning their husbands (20 compared with 9%; P < 0.001). Three callers were physicians with allegations of negligence against other physicians. In each case physician callers alleged injury to a child. Three callers contacted law firms from prison.

Although more potential plaintiffs were women, male-to-female ratios were similar for the first and second and beyond the fourth decades of life (Table 2). Significantly more female potential plaintiffs were noted, however, between the ages of 20 and 40 years (52% compared with 30%; P < 0.001).

Reasons Prompting Calls to Law Firms

The most frequent reason or reasons callers gave for contacting an attorney's office was television advertising (73%), followed by an explicit recommendation from a health care provider to seek legal counsel (27%), advice from a friend or family member (14%), and miscellaneous reasons (4%). In areas where law firms used television advertising, 265 (88%) of 302 callers said they contacted that law firm because of this marketing technique. In comparison, significantly fewer calls were prompted by television advertising in areas where the firms did not specifically advertise on television, although 50% still cited television as a primary reason for their call (P < 0.001). Presumably, “television-prompted” calls to firms without advertising resulted from advertisements by other law firms.

A few callers had had previous encounters with attorneys or courts. The call to these firms was typically the first (69%) or second (23%) to an attorney's office concerning the complaint. Only two callers had contacted more than three other firms. One hundred twenty-four (25%) callers had a history of being involved in other litigation (excluding divorce). In 61 cases the caller had been sued by someone else, whereas 88 had previously filed lawsuits. Only 25 (5%) callers had both sued and been sued.

Health Care Providers Named by Callers

The five physician specialties most frequently named by callers were obstetrics, family practice, orthopedic surgery, emergency medicine, and general surgery (Table 3). These practitioners comprised 269 (54%) of the 502 primarily named health care providers. Nurses were named in allegations almost twice as frequently as any other medical specialty or professional group. This resulted from nurses being cited as secondarily named providers more often than any other group.

For the 13 medical specialties and professional groups that were cited in 10 or more calls, 525 health care providers were accused of 954 acts of negligence or liability (1.8 acts per provider) (Table 4). The acts most frequently claimed were failure to diagnose (25%) and failure to properly perform a procedure (23%). Other categories, such as poor documentation and failure to properly use equipment or supplies, were infrequently cited by callers. A disproportionate number of psychiatrists were accused of sexual misconduct compared with physicians in other specialties.

Setting of Alleged Injuries

Private facilities (for example, hospital, office, emergency care center, or nursing home), with and without training programs, were named more frequently by potential plaintiffs as the site of alleged injury than were state, county, and federal facilities combined (83% compared with 17%, respectively). Forty percent of alleged injuries occurred in outpatient settings.

Economic Motivations

Financial issues were important to many callers and involved income and employment, outstanding medical bills, and health insurance (see Table 2). For 242 [48%] potential plaintiffs, difficulties with finances were specifically mentioned as a part of the complaint. Forty-five percent of the 278 potential plaintiffs with earned income had outstanding medical bills; approximately one third of these bills (36%) were 50% or more of the potential plaintiff's annual earned income. Not surprisingly, a significantly higher percentage of potential plaintiffs without earned income had outstanding medical bills (146 [66%] of 222; P < 0.001). The unemployment rate for potential plaintiffs was more than three times that for the general population in each area.

Noneconomic Motivations

The average ratings for providers with 10 or more calls are shown in Table 5. Obstetrics, family practice, and pediatrics had the highest rapport ratings, whereas nursing, orthopedic surgery, emergency medicine, and radiology were among the worst. A high rapport rating, however, did not seem to deter calls because obstetricians and family practitioners each had more primary complaints than any other specialty (see Table 4). Overall, 264 [53%] potential plaintiffs complained, often in angry terms, of a poor relationship with the health care provider before the alleged negligence. On average, callers felt that none of the specialty groups had kept them well informed. Emergency medicine physicians and pediatricians were rated as most available, whereas nurses were viewed as least available. All groups, except internal medicine, pediatrics, nursing, and neurosurgery, were rated poorly for not referring potential plaintiffs when callers felt this would have been appropriate.

Disposition of Claims

The statute of limitation date was 2 years after alleged negligence for most potential plaintiffs. Although most callers contacted the law firms before the statute date, this date had already passed for 66 (13%) potential plaintiffs. The median time between occurrence of an alleged injury and contact with a law firm was 234 days (range, 1 day to 24 years) (Figure 1).

Small recoverable damages (generally less than $50 000) and imminent or expired statute of limitation dates were the two most common reasons attorneys cited for rejecting cases (Table 6). Attorneys obtained medical records for 90 claims, and independent medical experts reviewed 85. As a result 24 lawsuits were filed, 53 claims were rejected, and 10 cases continue under review. Two other claims would have been filed but potential plaintiffs either decided to drop the matter or died without survivors. One additional case against a nurse and hospital was settled for $65 000 before a lawsuit was filed. Of those claims rejected after being evaluated by medical experts, most were felt to have had insufficient damages (42%) or lacked negligence on the part of the health care provider (26%).

Thus, only 3.3% of the 730 calls initially received by the firms were filed as lawsuits. This represented for each office approximately one malpractice lawsuit per 2 working days. Providers named in lawsuits included seven nurses, five family practitioners, three general surgeons, three obstetricians, three internists, one emergency medical technician, one radiologist, one ophthalmologist, one emergency room physician, one pediatrician, one psychiatrist, and one gynecologist. Of these cases, the percentage of callers contacting the law firms at the explicit recommendation of a health care provider did not differ from those who did not have a lawsuit filed (26 compared with 27%; P > 0.2). As of this writing, seven lawsuits have closed, six in favor of the plaintiff and one in favor of the defendant. The amount of award in one case was sealed by the court; for the remaining six, the average award was $306 000. Four suits were settled before trial and three by jury verdict. The other 17 cases await resolution.

Discussion

The pool of potential plaintiffs for medical malpractice litigation in the United States is enormous. This fact, although not recognized by many physicians, derives in part from two comprehensive reviews of inpatient records in New York and California that showed 0.8% to 1.0% of hospitalizations result in adverse events caused by negligence [8, 10]. Approximately one third of these adverse events lead to permanent total disability or death. If these percentages are extrapolated to the 33 567 000 hospitalizations that occurred in the United States during 1991 [13], then somewhere between 90 000 and 336 000 potential medical malpractice lawsuits are generated annually. This figure is three to twelve times the estimated 28 000 lawsuits filed in the United States in 1990 [14]. In one study, less than 2% of injuries caused by medical negligence identified by hospital chart review led to lawsuits [15], suggesting that most lawsuits cannot be identified in this manner. Our results indicate that hospital chart review fails in part because many potential plaintiffs suffer no clinically significant adverse event, have alleged injuries of minor economic value, or do not wish to litigate over care rendered in an outpatient setting.

Surveys of randomly selected persons suggest a staggeringly large pool of medically aggrieved patients. Interviews with 2315 adults in Wisconsin and Maine found 12% to 25% felt either they or a close relative had had at least one episode of harm as a result of medical treatment [5, 6]. Fewer than 10% of these aggrieved patients, however, had contacted an attorney about their injury. These patients used a broad audience of confidants, including family members, friends, lawyers, and medical professionals, in addition to legal advertisements on television, when deciding whether to pursue a lawsuit [4-6]. Among these advisors, an explicit recommendation by a health care provider to seek legal counsel was reported by 27% of the callers in this study. These recommendations, however, were not predictive of claims put into suit. We suspect this was caused by a lack of understanding by health care providers of criteria used by attorneys to select cases.

The six law offices in this study received an average of 12 calls per office per day. Few of these calls, however, resulted in lawsuits, most often because estimated damages were insufficient to cover the costs of litigation. Noneconomic motivations for calling included a poor relationship with a provider before an alleged injury and feelings of not being kept informed or appropriately referred. Miscommunication between patient and provider is clearly a major contributor to calls received by attorneys. Reasons for miscommunication in medical care are complex and relate to characteristics of the patient, illness, provider, and clinical setting [16]. Although improvement in provider-patient communication can decrease patient dissatisfaction, it remains to be shown that this technique lessens the risk for litigation.

Although we anticipated potential plaintiffs would be angry with providers after an alleged injury, we were surprised that 53% reported an unsatisfactory relationship with their provider preceding the injury. It is tempting to discount these unhappy patients as just a small group of angry and unduly litigious persons who enjoy calling several attorneys with the same complaint. This, however, did not appear to be the case. Sixty-nine percent of calls were the first to a law firm concerning the alleged malpractice, and few had called more than one other attorney. In addition, only 18% of potential plaintiffs stated having ever filed a lawsuit before (excluding divorce). This latter percentage does not differ substantially from the approximately 20% of adults in the United States who admit to previous involvement in civil litigation [17].

Economic considerations were another set of motivating factors for many callers. Nearly half (48%) the callers had financial concerns as a part of their complaint. Financial stresses included unemployment (33%), lack of health insurance (31%), and outstanding medical bills (54%). Other stresses mentioned less frequently included uninsurability for health or life at an affordable cost and the anticipated cost of continuing medical care. Litigation was often viewed by potential plaintiffs as a solution to their financial difficulties, many of which were directly related to the cost of medical care.

When we compared our findings to those of malpractice claimants with closed files [7], we noted numerous similarities. These groups differed little in age, male-to-female ratio, occupation, income, source of health care payment, interval between injury and the filing of a claim, proportions of types of named health care providers, number of providers per claimant, or types of facilities involved (data not shown). Differences were often minor or caused by definitions and methods of data collection. One possible explanation for these similarities might be that potential plaintiffs, as a group, reflect the true spectrum of medical malpractice across age, sex, and socioeconomic classes for patients and specialties for providers. Conversely, similarities may simply represent nonspecific case filing from among the pool of callers by attorneys who do not understand medical issues.

Indeed, the identification of meritorious cases from unselected callers is a difficult process. Errors occur when plaintiff attorneys file suit in cases deficient in one or more of the four essential components of a successful medical malpractice claim: lack of duty to provide care; negligence; causation; or damages. Although ideally all four components are established before filing a lawsuit, cases are not infrequently placed into suit without all the facts. Finally, some attorneys are excessively litigious or not medically enlightened and file frivolous lawsuits. On the basis of our knowledge of each suit, we believe few, if any, of the 24 cases placed in litigation were filed in error or in a frivolous manner.

Understanding the prelitigation process of case selection partly explains why complaints in this study and adverse events caused by medical negligence in other reports [8, 15, 18] are discordant with claims actually filed. For 13% of the potential plaintiffs, these issues were moot because the statute of limitation date had passed and no lawsuit could be filed. For almost all remaining claims, a lack of estimated damages sufficient to cover the cost of litigation precluded further evaluation by attorneys. In these cases issues of causation and negligence were seldom investigated.

Our study had several limitations. Because our observations were uncontrolled, we could not ascertain whether callers were more litigious, had worse financial difficulties, or rated providers lower than did similarly treated patients who did not call. A case–control study would be necessary to define potential plaintiffs in this fashion. Although potential plaintiffs formed a cohort in that they included all callers to the law firms on each randomly selected day, we were unable to interview 31%. We could not reach many again despite several attempts, or, when contacted, they could not coherently answer questions over the telephone. It seems unlikely that their claims, even if meritorious, would have been pursued by a plaintiff attorney. Likewise, we have no way of knowing how many potential plaintiffs with rejected claims contacted other attorneys and had lawsuits filed. Because we did not review medical records and bills, we could not ascertain whether claims made by potential plaintiffs were accurate. Information provided by chart review would have helped verify complaints but was not essential to determining callers' motivations for contacting attorneys' offices. Finally, we have no way of knowing whether the number of calls taken by firms in this study was excessive compared with the number by firms in other cities and states. We are unaware of comparative data. By any measure, however, an average of 12 calls per day by patients to attorneys is disheartening. We suspect this number is conservative because five of the six law firms were located in Midwest and Mountain states where health care litigation is typically less common compared with other parts of the country [19].

The results of this study should compel health care providers, including clinics and hospitals, to more closely examine why patients become dissatisfied with medical care. Providers wanting to protect themselves from patients who might call attorneys must learn to ask explicit questions about their patients' level of understanding of and expectations for medical care and its cost. Providers should routinely supply realistic and understandable information to patients; identify, explain, and follow-up on adverse events; and willingly refer patients who require special expertise. Providers should consider establishing or strengthening policies within clinics and hospitals that allow patients to deal with conflict within the medical arena, short of legal means. Although for most potential plaintiffs lawsuits are never filed, the disputes raised by these patients and their families are not resolved nor is their anger defused.

Potential plaintiffs are a vocal subset of medically aggrieved patients. The lessons learned in characterizing them cannot be ignored. For plaintiff attorneys the results are clear: A 2-year statute of limitation excludes few clients; television advertising can triple the number of calls; and approximately 1 in 30 callers will have a complaint worthy of litigation. Conversely, malpractice insurers might lobby to decrease the number of lawsuits by shortening the statute of limitation, limiting television advertising by plaintiff firms, placing limits on the economic recovery, and implementing methods to improve prelitigation review of claims by medical experts. Finally, for health care providers one message should be clear: Medical malpractice, although a substantial problem, is but a smaller issue within the larger crisis of patient dissatisfaction with modern health care.

Preliminary data were published in abstract form in Clinical Research. 1993; 41:236A.