By Frances Correa
While physicians in high-risk specialties face a near certainty of a malpractice claim at some point in their careers, only a small minority will end up making an indemnity payment to a patient.
The probability of facing a malpractice claim increases with length of time in practice, based on data from 1991 through 2005 from a large national malpractice carrier insuring more than 40,000 physicians in all 50 states and the District of Columbia and published Aug. 17 in the New England Journal of Medicine.
Among physicians in high-risk specialties such as neurosurgery, general surgery, and obstetrics/gynecology, an estimated 88% were projected to face their first claim by age 45 and an estimated 99% by age 65. In low-risk specialties such as family medicine, pediatrics, and psychiatry, 36% of physicians were projected to face their first claim by age 45 years and 75% by age 65 years, Dr. Anupam Jena of Harvard Medical School and his colleagues wrote.
In contrast, the projected rates of indemnity claims paid to plaintiffs were lower. By age 45, 33% of physicians in high-risk specialties were projected to have had a claim paid, rising to 71% by age 65 years. For physicians in low-risk specialties, 5% were projected to have had a claim paid by age 45 years, rising to 19% by age 65 years (N. Engl. J. Med. 2011;365:629-36).
"If you've hit 65 and you haven't had a claim, that's rare; that's almost impossible in our data," Dr. Jena said in an interview, adding that high-risk specialties often come with higher salaries, which could be what balances out the risk factor for physicians.
Overall, 74% of physicians were sued for malpractice each year of the study, with 1.6% having an indemnity payment made each year.
Dr. Jena and colleagues also found that specialties in which physicians were more likely to face a malpractice claim were not the ones where indemnity payments were most prevalent.
For example, 19.1% of neurosurgeons faced a claim each year, according to the analysis, compared to 3.1% of pediatricians. However, the average indemnity payment for neurosurgeons was $344,811, lower than the average of $520,924 for pediatricians.
While few claims resulted in payment, researchers said they were surprised by how many physicians face malpractice claims every year.
"A lot of those claims do not resolve in a payment to the patient, but they still involve significant monetary costs to both the physician and the insurer," Dr. Jena said. "The physician has loss of productivity because they're not able to see patients as they defend cases ... and then there are all sorts of non-monetary costs that we simply cannot measure," Dr. Jena said in an interview.
Among all specialties, neurosurgery had the highest risk of being sued (19.1%), followed by thoracic-cardiovascular surgery (18.9%), and general surgery (15.3%). Specialties with the lowest risk of facing being sued included psychiatry (2.6%), pediatrics (3.1%), and family medicine (5.2%). The average payment for all specialties was $273,887.
Some lawmakers and health care organizations have advocated for national medical malpractice reform, or tort reform, as a means of lowering health care costs; California and Texas already have $250,000 caps noneconomic damages. However, there's little evidence that proves these measures are lowering health care costs. Even without tort reform, Dr. Jena said that he believes the best solution is one that roots out frivolous claims.
"There are some claims which have merit and should be fully investigated and should be brought before a jury or settled, and there are also claims that don't have that same merit. And those are the claims that we really should try to identify and limit early."
According to Dr. Bruce Malone, nuisance suits have been significantly reduced since Texas instituted a cap on noneconomic damages in 2003.
"The wasteful process of a medical liability trial has also been reduced, as true cases of malpractice are typically resolved through a settlement. Also, legitimate cases of malpractice can still be awarded the compensation they deserve," said Dr. Malone, president of the Texas Medical Association and a practicing orthopedic surgeon with the Austin Bone and Joint Clinic in Austin, Tex.
In addition to the $250,000 maximum payment for pain and suffering (per physician, hospital, and/or third party, equaling up to $750,000), patients can also be compensated for past and future medical expenses in Texas. In addition, trial lawyers seeking a large payoff can no longer afford to litigate cases with very few damages, Dr. Malone said, adding, "Therefore, nuisance cases are reduced to complaints before the Texas Medical Board where they can be handled responsibly in a more cost-effective manner."
Without the concerns of facing a nuisance suit, the change has allowed hospitals in Texas to redirect those funds to improving care, like funding safety systems or electronic medical records, Dr. Malone said. It also allows physicians to invest in their practices and provide more charity care.
"The change has also brought thousands of doctors to Texas and improved access to quality care," he said. "As family practitioners face high overhead costs and low reimbursement rates, just saving on medical liability has allowed some doctors to continue their work where otherwise they may not have been able to."
The study received funding from the National Institute on Aging and the RAND Institute for Civil Justice; one coauthor received grant support from the RAND Institute for Civil Justice.