Characteristics of Potential Plaintiffs in Malpractice Litigation

The medical malpractice crises of the last 20 years have been fueled in large measure by increasing numbers of patients wishing to litigate because of perceived adverse outcomes [1]. Although the situation has been much discussed [2, 3], few hard facts exist concerning the motivations of patients and families wanting to sue [4-6]. Studies of closed claims [7] and adverse events among hospitalized patients [8-10] have defined the magnitude of the malpractice problem but provided little insight into what prompts patients to call attorneys and file claims. The study of motivational factors among malpractice claimants is difficult for many reasons: The lack of access to potential patient-plaintiffs through attorney offices makes location of sufficient numbers of nonselected claimants for analysis difficult [5, 6]; study of plaintiffs identified through closed claims suffers from bias introduced by deposition and trial preparation that can alter recollections of events occurring many years previously [4]; and there has been preferential examination of other issues (for example, economic) not involving tort litigation [11]. To define potential malpractice plaintiffs, we prospectively interviewed patients that had contacted law firms specializing in malpractice and personal injury. Our purpose was to characterize their economic and noneconomic motivations and thereby encourage rational strategies to reduce liability risks for health care providers. 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. Table 1. Relation of Callers to Potential Plaintiffs 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). Table 2. Characteristics of 502 Potential Plaintiffs 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 a