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Most of the debate about medical malpractice is permeated by unsubstantiated beliefs.[12] We term these myths because there is little reliable quantitative or qualitative information about tort litigation in general and medical malpractice litigation in specific. There are many studies and uncounted policy articles, but very few pass even rudimentary study design criteria. The best-controlled and most comprehensive study is the Harvard Medical Practice Study. It began with hospital records rather than insurance claims. It was made possible because it was done for the state of New York under state authority.[13] The major predecessor of this study was done in California in the 1970s to determine if a no-fault malpractice system would be cost-effective.[14]

The most common methodological flaw in most studies is improper sample selection. This is not the fault of the researchers so much as a reflection of the disarray of the primary data sources. There are three primary sources of data about medical malpractice claims: court records, reports to third parties such as Boards of Medical Examiners (BOMEs) and insurance commissions, and insurance company data.

There are several problems with court records. Few courts have comprehensive computer access to all court documents, making it very difficult to extract data. Court records are incomplete because some claims are settled without a lawsuit being filed. They are inaccurate because many states do not require that the settlement filed with the court be the same as the agreement between the plaintiff and the defendant. It is not unusual for defendants to settle cases for substantial payments on condition that the plaintiff withdraw the lawsuit and file court papers to the effect that the defendant paid nothing and the lawsuit was just a misunderstanding. This prevents reporters and others seeking to investigate the physician from knowing that a malpractice settlement has been paid.

With the advent of the National Practitioner Databank, most states require all payments for medical malpractice claims to be reported to the BOME or the state insurance commission. In the long term, these promise to be excellent sources of financial data if obvious loopholes are closed. The most serious problem with most state reporting laws and the National Practitioner Database is that they are triggered only by payments made in the physician's name. Physicians can avoid being reported if another party, such as a hospital or health maintenance organization, is willing to pay the plaintiff to drop the physician from the lawsuit.[15] Additional problems are that these reports usually do not contain sufficient data to evaluate the underlying medical care, requiring the researcher to obtain individual claims records from the insurer.

[12]Kapp MB: Defensive Medicine (letter). JAMA 1987; 258:1176.

[13]Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York: The Report of the Harvard Medical Practice Study to the State of New York. 1990

[14]Mills DH, ed.: California Medical Association and California Hospital Association Report on the Medical Insurance Feasibility Study. 1977; Sanazaro PJ; Mills DH: A critique of the use of generic screening in quality assessment. JAMA 1991; 265:1977-81.

[15]Rushford G: Data bank has a deficit; Doctors who settle malpractice claims keep names out of monitoring system. Leg Times 1991 April; 22:1.

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