Study Looks at Risk of Malpractice Lawsuit by Specialty

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The threat of malpractice lawsuits looms large for many practicing clinicians. But while the lifetime risk runs high overall, there is substantial variation among specialties in terms of the likelihood of claims and the size of payments, according to a paper published in the August 18, 2011, issue of the New England Journal of Medicine.

Researchers led by Amitabh Chandra, PhD, of Harvard University (Cambridge, MA), obtained malpractice data from a large, physician-owned professional liability insurer with a nationwide client base. They collected information on the experiences of 40,196 physicians from 1991 to 2005 and analyzed the findings for 25 specialties.

No Single Experience

In all, 7.4% of physicians had a malpractice claim each year and 1.6% had a claim that led to payments, meaning that 78% of all claims failed to result in payments. But the proportion of physicians sued each year varied considerably by specialty, ranging from 2.6% in psychiatry and 3.1% in pediatrics on the low end to 18.9% in thoracic-cardiovascular surgery and 19.1% in neurosurgery on the high end. Cardiology, which ranked 11 out of 25, had an annual risk of approximately 8%.

Interestingly, the top 5 specialties were all in surgery: neurosurgery, thoracic-cardiovascular surgery, general surgery, orthopedic surgery, and plastic surgery.

The risk of making an indemnity payment, and the size of that payment, also varied among the 25 specialties. Across disciplines, the mean payment was $274,887 and the median was $111,749. Specialties most likely to face claims often did not make the highest payments, however; neurosurgeons, for example, paid an average of $344,881 per claim, while pediatricians paid an average of $520,924. Cardiology again fell in the middle, ranking 10th out of the 25 specialties, with an average malpractice payment of slightly more than $300,000.

Dr. Chandra and colleagues also assessed trends in claims and payments by comparing the 5 lowest risk specialties with the 5 considered highest risk. Physicians in the low-risk group were more likely to face a claim between the years of 1991 and 1995 than they were between 2001 and 2003 (8.3% vs. 5.8%, respectively). Those in the high-risk group experienced the highest risk of being sued in the period from 1996 to 2000 (approximately 17%). Claims resulting in payments showed similar patterns.

An estimate of cumulative career malpractice risk found that a majority of physicians in high-risk specialties had been faced with a claim by age 45. Nearly all eventually were sued by the age of 65. The risk of making an indemnity payment also was high for these clinicians (table 1).

Table 1. Proportion of Physicians Facing Claims and Payments

“Our estimates provide a glimpse into US malpractice risk among physician specialties,” the investigators conclude. “High rates of malpractice claims that do not lead to indemnity payments, as well as a high cumulative career malpractice risk in both high- and low-risk specialties, may help to explain perceived malpractice risk among US physicians.”

Injuries Make It Easier to Place Blame

In a telephone interview with TCTMD, Dr. Chandra elaborated on the reasons why some specialties have higher risk of malpractice claims than others.

“[W]e know that malpractice lawsuits are filed when injuries occur, not necessarily when negligence or malpractice has occurred,” he said, explaining, however, that an adverse event during surgery may have been caused by negligence, or even just by the fact that the procedure was “a high-risk surgery and 30% of the time bad things happen to good people. But surgeons are much more likely to be associated with an injury, so unsurprisingly you see the surgical specialties getting sued a lot more.”

Cardiology understandably falls somewhere in the middle, Dr. Chandra said. “Interventional cardiologists are doing something intensive—they’re stenting patients—but you know, the great thing about a stent is that it is essentially a less invasive procedure than bypass. The stent may not have created value, but it’s unlikely to have killed the patient,” he commented. “So I think you can see that story at work here. Cardiology is much more intensive than say, pediatrics or psychiatry or pathology or even dermatology, but it’s certainly less intensive than cracking open someone’s chest.”

Ajay J. Kirtane, MD, SM, of Columbia University Medical Center (New York, NY), pointed out that cardiology involves many screening tests and also invasive procedures, both of which can spur claims.

Clinicians Carry a Weight

Dr. Kirtane confirmed in a telephone interview with TCTMD that the threat of malpractice is an ongoing worry and may affect how clinicians manage patients. “One of the things we tell our fellows is that the first time this happens, either a claim or even a request for information, just psychologically it really is hard because unless there’s a clear error that took place, we feel that we’re trying to do the best for our patients,” he said. “The problem is, the way the legal system works is that even if you’re not being negligent, you’re being accused as such. [That] takes a toll on you.”

In an e-mail communication with TCTMD, Sunil V. Rao, MD, of Duke University Medical Center (Durham, NC), described the complex factors weighed by clinicians.

“We would be naive to think that it doesn't enter our minds when taking care of patients; however, I think the vast majority of physicians (including interventionalists) are trying to do the right thing and aren't practicing defensive medicine consciously,” he told TCTMD. “There is also a perception that patients expect perfection, which I don't think is true either. I think patients want compassionate, honest care. That includes owning up to mistakes.

“Good communication facilitates the doctor-patient relationship and reduces the risk for lawsuits,” Dr. Rao continued. “One of my mentors told me once that the hardest thing about being a physician is being held responsible for the unpredictability of human biology.”

According to Dr. Chandra, the 7.4% annual rate of malpractice claims is a marker of the “massive emotional and hassle costs” borne by physicians.

“When a doctor gets sued, he gets his name dragged through the local newspaper. He has to go to the local courthouse and be deposed or testify, and those are costs they cannot insure against,” he commented, adding, “[O]ver their lifetime, they’re going to spend a ton of time dealing with this stress. I’m not a doctor, but as an economist I’d say that the stress is OK if it improves the quality of care or makes the patient whole, but it doesn’t make the patient whole. It’s just something the doctor has to deal with.”

Would Malpractice Reform Help?

Clinicians should not shy away from citing these issues when entering the debate on malpractice and tort reform, Dr. Chandra stressed.

Dr. Kirtane, meanwhile, pointed out that such reform “is a critical aspect to any effective cost containment in health care litigation, . . . because defensive medicine can really drive up costs and change physician behaviors. On the other hand, there is negligence that [occurs] and it’s important to allow victims of that to have a voice.”

Dr. Rao, who also serves as director of the cardiac catheterization lab at the Durham VA Medical Center (Durham, NC), suggested that the US Department of Veteran Affairs (VA) could serve as a model for other institutions trying to deal with potential malpractice claims. “If a patient wants to bring suit, the VA will send the records to 2 independent physicians in the same specialty to determine if there was negligence or a medical error. If there is a finding of either, then the case moves forward; otherwise, it doesn't,” he said, pointing out that The Netherlands employs a similar system. “This cuts down on frivolous lawsuits.”

 

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Source:
Jena AB, Seabury S, Lakdawalla D, et al. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629-636.

 

 

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