Malpractice Threat to Physicians Pervasive, AMA Study Finds

Mark Crane

August 05, 2010

August 5, 2010 — More than 42% of physicians have been sued for medical malpractice at some point in their careers, and more than 20% were sued at least twice, according to a new American Medical Association (AMA) report.

An average of 95 claims were filed for every 100 physicians — almost 1 per physician — the AMA's Physician Practice Information survey of 5825 physicians, fielded in 2007 and 2008, found.

Despite the pervasive threat of litigation across 42 different specialties surveyed, two thirds of claims are dropped or dismissed, and physicians prevail 90% of the time in cases that go to trial, the study found. Still, the costs to physicians in terms of malpractice premiums and to the entire healthcare system resulting from the practice of defensive medicine are quite high. Average defense costs per claim range from a low of $22,000 among claims that are dropped or dismissed to a high of more than $100,000 for cases that go to trial.

"Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can influence how and where physicians practice, when they retire, and how often they practice wasteful defensive medicine," AMA Immediate Past-President J. James Rohack, MD, told Medscape Medical News. "This litigious climate hurts patients' access to physician care at a time when the nation is working to reduce unnecessary healthcare costs.

"Unfortunately, there are no real surprises in this study for us," said Dr. Rohack, a cardiologist in Temple, Texas. "It reconfirms the need for a solution to our current tort system. If the nation is ever going to control the rise in healthcare costs, we have to eliminate wasteful defensive medicine spending."

Other highlights in the report include:

  • Nearly 61% of physicians aged 55 years and older have been sued.

  • There is wide variation in the effect of liability claims between specialties. The number of claims per 100 physicians was more than 5 times greater for general surgeons and obstetricians/gynecologists than it was for pediatricians and psychiatrists.

  • Before they reach the age of 40 years, more than 50% of obstetricians/gynecologists have already been sued.

  • Ninety percent of general surgeons aged 55 years and older have been sued.

"In any single year, being sued is a rare event. Only 5 percent of physicians had claims filed against them in that time frame. Over the length of a career, however, claims are much more common," the report found.

Using data compiled by the Physician Insurers Association of America, a group of physician-owned or physician-operated liability carriers, the AMA survey found:

  • Sixty-five percent of claims were dropped, dismissed, or withdrawn; 25.7% were settled; 4.5% were decided by alternative dispute mechanism; and 5% were resolved by trial, with the defendant prevailing in 90% of those tried cases.

  • Median indemnity payments were $200,000 for settled claims and $375,000 for tried claims.

Pediatricians and psychiatrists had the lowest incidence of claims. Less than 30% of physicians in either specialty were sued. General surgeons and obstetricians/gynecologists had the highest incidence of claims. Nearly 70% of physicians in those specialties were sued, and more than 200 career claims were filed for every 100 physicians.

Twice as many male physicians had been sued (47.5%) compared with female physicians (23.9%). Male physicians had more than twice as many career claims per 100 physicians, at 111 for men compared with 41 for women. There are several reasons for that disparity. Male physicians are concentrated in the specialties with the highest levels of claims, and female physicians are concentrated in those with the lowest levels. Women also are newer entrants into the medical workforce, so the men had a longer time period, or length of exposure, during which to accumulate claims. Male physicians also worked on average 5 more hours per week than women, resulting in greater exposure. Finally, male physicians were more likely to be practice owners than women.

Practice owners were about 14 percentage points more likely to be sued than employees (47.5% vs 33.4%) because owners incur claims from other physicians and employees of their practices.

The report concludes that the malpractice system "gets it wrong" in terms of compensation for medical errors on both sides of the equation. Citing a 2006 study (N Engl J Med. 2006;354:2024-2033), the report said 27% of claims involving errors were uncompensated. On the flip side, the same percentage of compensated claims did not involve a medical error.

The AMA cites its report to lobby for "proven medical liability reforms to lower health care costs and keep physicians caring for patients," especially caps on awards for pain and suffering. "The findings in this report validate the need for national and state medical liability reform to rein in our out-of-control system where lawsuits are a matter of when, not if, for physicians," said Dr. Rohack.

The AMA favors caps on awards for noneconomic damages. "We know they work," Dr. Rohack said. "Before the reforms in Texas in 2003, obstetricians, neurosurgeons, orthopaedists, and other high-risk specialists were leaving the state. Patients had to travel long distances to see these specialists."

Paul B. Ginsburg, PhD, president of the Center for Studying Health System Change, based in Washington, DC, said the report shows that the threat faced by physicians, particularly in the high-risk specialties, is pervasive.

"We have long known that the medical liability system is a highly ineffective and inefficient mechanism to improve quality," Dr. Ginsburg said. "As the delivery system advances in the area of quality measurement, the crude and poorly targeted liability system seems to be even more inappropriate. In fact, the malpractice system is really obsolete in terms of improving quality and compensating victims."

Dr. Ginsburg argues that the AMA should "aim higher" in its reform efforts. Caps on awards are "a Band-Aid, not true reform. It may reduce the volume of claims and payouts through the system but doesn't improve quality. And the opposition to caps is so dug in that it may be impossible to achieve anyway.

"There are more ambitious proposals, such as granting safe harbors for care delivered in accord with accepted practice guidelines," he added. "Care delivered consistently with those guidelines should be protected." Pilot projects such as special health courts where judges experienced in malpractice cases choose their own experts and decide a case without a jury also are promising, he said.

Dr. Rohack said the AMA also favors these reforms but believes that caps on awards are a proven benefit to physicians.


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