Most Doctors Sued Sometime in Career

By | August 19, 2011

A new study published in the New England Journal of Medicine this week says that one in 14 doctors faces a malpractice suit every year.

Moreover, almost every physician will face a malpractice suit — or more than one — during his career.

The study authors, led by Anupam B. Jena, of Harvard Medical School, say their study is the first look at malpractice and how common it is, with a large number of physicians, followed for a number of years, and, without the bias of having the physicians report their experience themselves.

The study also reported that, although many suits are filed, relatively few are successful. The aggrieved patient wins only 22 percent of the time.

The study’s findings are not a huge revelation to malpractice insurers, of course.

“The report doesn’t provide information that is surprising to those in the medical professional liability industry,” said Rob Francis, chief operating officer at The Doctors Company, Napa, Calif. “The frequency of claims does vary significantly by specialty, and the majority of claims are resolved in favor of the physician, pointing out the prevalence of frivolous claims. In our data, over 80 percent of claims are closed with no payment to plaintiffs.”

The study looked at data on 40,916 physicians who were insured for at least one year sometime between 1991 and 2005 by a single professional liability insurer, which the researchers agreed not to name. The data set, coming from an insurer, allowed the researchers to see about the cases filed but not won by the plaintiffs and awards given when the physician lost. Previous studies have not had the ability to do both, the researchers said.

The researchers were also able to look at the data by specialty, and they found the risk of being sued and the awards associated with losing varied considerably.

The physicians with the highest risk of being sued were the neurosurgeons, with an annual risk of 19.1 percent, followed by the thoracic-cardiovascular surgeons, with an annual risk only slightly less at 18.9 percent, followed by the general surgeons, with an annual risk of just less than 15.3 percent. The physicians with the lowest risk of being sued were the pediatricians, with an annual risk of 3.1 percent, followed, lastly, by the psychiatrists, with an annual risk of 2.6 percent.

The physicians most likely to lose a malpractice case in any given year were the general surgeons, 4 percent of whom lost a case annually.

Overall, the study authors said, 75 percent of physicians practicing in a low-risk specialty will have been sued by the time they are age of 65 years, 19 percent will have made an indemnity payment. For those in the high risk specialties, 99 percent will have been sued by age 65, and 71 percent will have lost.

The average indemnity payment was $274,887 in 2008 dollars. But, again, there was a range, from a low of an average of about $110,000 for a claim against a dermatologist to a high of $520,924 for a claim against a pediatrician.

The high dollar amount of an indemnity payment in a pediatrics case reflects the fact that when there is an injury, it is an injury to a child.

The same factor has been thought to effect obstetrics/gynecology. The prevailing notion in medicine has been that obstetricians face the highest likelihood of being sued and the highest likelihood of losing big because when a mishap occurs in obstetrics it occurs to a baby, and it is extremely emotional for all involved.

Obstetricians often pay the highest premiums for malpractice insurance of any specialty. According to figures from the federal government, from 2003, the average rate paid by an obstetrician/gynecologist was $64,000 a year, or more. That compared with $28,000 to $50,000 for a general surgeon and $6,000 to $11,000 for an internist. In Florida, where malpractice premium rates tend to be the highest, an obstetrician/gynecologist can pay over $100,000 a year — sometimes well over.

In this study, however, the average payment in an obstetrics/gynecology case ranked third, behind the average payment in pediatrics and pathology. The average payment in an obstetrics/gynecology case was slightly more than about $360,000.

In recent years, as malpractice premiums have continued to rise, a number of states have enacted caps on malpractice awards. Twenty-seven states currently limit the amount that can be awarded for non-economic damages, usually to around $250,000, notably California and Texas.

Some research has indicated that having a cap really does not keep down malpractice premium rates, though it may help a state attract physicians. But, Howard Lamb, chairman of Medicus Insurance Co., Austin, Tex., said that, when just about every physician is likely to be sued, tort reform and awards caps make a huge difference.

He said that two-thirds of a professional indemnity insurers costs are related to claims, so that if awards come down and the number of suits filed drops, premium rates necessarily will follow. He said that in Texas, where tort reform was enacted in 2004, the number of cases filed have dropped by a half.

“There appears to be a lot of difference,” Lamb said. “Texas is a good example. In Texas, the malpractice rates have dropped by 40 percent.”

In recent years too, the physician community has come to realize that many malpractice suits arise not so much because a mistake or an act of negligence has occurred but because the mistake has not been acknowledged. Then the patient gets angry and feels helpless and becomes more likely to sue. As a result, there have been efforts to train physicians and hospitals to listen more openly to patient complaints and to be more willing to admit a mistake.

The Doctors Company’s Francis said that because the study contains no surprises for malpractice insurers, it is unlikely to change premium rates in any way.

“There is nothing in the report that will change rates as the information is consistent with industry experience,” he said. “What is apparent is that in tort reform states, the awards are more predictable, which initially reduces claims and then mitigates inflationary effects thereafter.”

In the study conclusion, Jena and colleagues wrote: “Our results may speak to why physicians consistently report concern over malpractice and the intense pressure to practice defensive medicine, despite evidence that the scope of defensive medicine is modest.”

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