Research Stories

by Diane Boudreau

The United States is a "litigation-happy" society, with citizens just waiting for the opportunity to sue. This belief is widely accepted and widely proclaimed–but is it true? Not really, according to Michael Saks.

"I think what's interesting about tort litigation is that we almost live in two different worlds–the world of popular belief and the world of what the data show," says Saks, a professor at Arizona State University's Sandra Day O'Connor College of Law.

Saks has studied data about lawsuits for many years. He says the research results do not support the popular notion that we are a litigious society and that juries are very generous to plaintiffs. In fact, Americans are very reluctant to sue, and when they try, few meet with much success.

Saks has focused largely on medical malpractice litigation, which takes a lot of the blame for rising healthcare costs. But the ASU professor says it's more likely that patients aren't suing enough.

"On the data side of things, there is no source of accidental injury that injures more people, more seriously, than medical mistakes. And there's an astonishing lack of people suing," he says. "The most serious injuries, short of death, cost the family a fortune. The victim loses the ability to work and has expensive medical costs. But only 17 percent of these seriously injured patients and their families ever sue."

The problem, says Saks, is that medical interventions are inherently risky. It's difficult to know what is a normal risk and what is malpractice. People don't automatically assume a doctor messed up when they come home from the hospital feeling lousy.

When patients do decide to sue, they often have trouble finding a lawyer to take the case. Saks says that lawyers turn away many malpractice cases for every one they accept. Of the cases that are accepted, about half will be dropped before going to trial. And of those that aren't dropped, most will be settled out-of-court.

"Patients often feel compelled to settle because they have medical bills and need money right away. They can't wait years for a trial. So the defense can offer a lower amount than the patient's actual losses," says Saks.

When cases do make it to court, fewer than 25 percent are decided in favor of the plaintiff.

"Juries start out sympathetic to the defendant in these cases. They are quite unaware that more accidental injuries are caused by medical care than every other type of accident added together," says Saks.

The ASU professor wants to find more ways to make the malpractice system work better. "The malpractice system stinks, but not because it's too hard on doctors. It stinks because it doesn't do what it's supposed to do–create proper incentives for safety," he says.

A federal vaccine injury compensation program might serve as a model for an alternative malpractice system. To explore this possibility, Saks is working with Roselle Wissler, director of research for the ASU Lodestar Dispute Resolution Program, and with Betsy Gray, also an ASU law professor.

The number of people harmed by vaccines is small, but manufacturers were upset by the few lawsuits that were filed, perhaps because vaccines aren't very profitable overall. As a result, the federal government created a system for handling these suits. They tacked a small surcharge–about 75 cents–onto every vaccine.

This money goes into a special fund for paying claims. If you suffer a recognized side effect within a certain timeframe after receiving a vaccine, the government quickly issues a payment.

Saks says that for a long time, the system was "prompt and generous." However, more recently, the table of recognized injuries has been narrowed and Justice Department lawyers have become more aggressive in defending the fund.

"We started this study as a model of a different way to deal with medical injuries," says Saks. "As we look closer, in some ways it's a disaster of its own. It's not working the way it was intended. So we will try to make recommendations on how to do it better."

For more information, contact Michael Saks, Ph.D., Sandra Day O'Connor College of Law, 480.727.7193. Send email to Saks@asu.edu