Two recent papers have prompted me to ask myself the question, “Why do malpractice suits take so long to be resolved?”

One was by a group from Harvard, USC and the RAND Corporation. They looked at more than 10,000 closed malpractice cases for all specialties and found the average length of time it took to close a case was 19 months, with litigated claims taking a little over twice as long as non-litigated claims, 25.1 vs. 11.6 months respectively. Claims that were resolved at trial took much longer, averaging 39.0 months for defendant verdicts and 43.5 months for plaintiff verdicts.

The second study was by a group headed by a surgeon based at a Johns Hopkins affiliated hospital. They reviewed 187 closed surgery claims at four university hospitals in New York. Using a different method of calculating the length of time, they noted a mean time until resolution of all claims of 4.5 years. Cases closed with no payment took 3.9 years, while those won or lost at trial took about 5 years.

I’ll give you a minute to see if you can guess why it takes so long to resolve these claims.

Here’s my theory. I think it might have something to do with the involvement of lawyers. We all know that plaintiffs’ attorneys get a large percentage of the take from any case settled with payment or plaintiff’s verdict with damages.

But defending cases can be expensive too. Since defense lawyers are paid according to their billable hours, it seems to me that it is in their best interest to make a claim last as long as possible. Have you ever been deposed or read a deposition? Lawyers object to every other question, which accomplishes nothing. The question still has to be answered. They also ask the same questions over and over leading to the old “Objection, asked and answered” response. Often the questions seem to have nothing to do with the alleged negligence.

Let’s do some math.

A paper that appeared in the journal Health Affairs in 2005 addressed the legal costs associated with malpractice claims. The study found that “legal costs average $27,000 per claim in the United States, which adds approximately $1.4 billion in costs to the $4.4 billion paid in settlements and judgments. The costs of underwriting insurance against malpractice claims are estimated at an additional 12%, or $700 million. The cost of defending U.S. malpractice claims, including awards, legal costs, and underwriting costs, was an estimated $6.5 billion in 2001—0.46% of total health spending.”

Yes, it’s less than 1% of total healthcare spending. But as the old and possibly apocryphal saying attributed to the late Senator Everett Dirksen goes “A billion here, a billion there, pretty soon, you’re talking real money.” And don’t forget the emotional toll that being the target of a lawsuit takes on the defendant doctor while the case is meandering through the process.

Skeptical Scalpel is a practicing surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last two years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog has had more than 275,000 page views, and he has over 3600 followers on Twitter.