Neurosurgeons Face Highest Malpractice Risk

Allison Gandey

August 18, 2011

August 18, 2011 — A new study evaluating malpractice risk by specialty has bad news for neurosurgeons — they are getting sued more often than other physicians.

In the New England Journal of Medicine study, published August 18, investigators show the proportion of neurosurgeons dealing with a claim each year is 19%, compared with 5% in family medicine.

Why are neurosurgeons topping such a nefarious list?

Senior investigator Amitabh Chandra, PhD, from Harvard University in Cambridge, Massachusetts, told Medscape Medical News the reasons aren't what the malpractice lawyers might argue.

"Some will say the numbers are high because neurosurgeons are at the helm of the problem, but we know that lawsuits often come from people who have suffered injuries, not necessarily malpractice," Dr. Chandra said.

He pointed out it is often the most complex, high-risk cases that turn up in court, so it isn't surprising that brain surgeons are most affected. Thoracic-cardiovascular surgeons are next in line for highest malpractice claims, followed by general surgeons. "The vast majority of these claims are resolved in favor of the surgeon."

Still, Dr. Chandra noted, the social costs can be taxing. "We can't put a value on the hassle and emotional toll a case can have on a physician. Having your name in the newspaper and preparing for court dates can be extremely stressful."

His team analyzed malpractice data for all physicians covered by a large professional liability insurer with a nationwide client base. The study included more than 40,000 doctors with 233,738 physician-years of coverage.

Few Payouts

Investigators found that each year, 7.4% of all physicians had a malpractice claim, with 1.6% of all physicians having a claim that led to payment. The majority, 78% of all claims, did not result in any payouts.

The study spanned 25 specialties and found that about 55% of physicians in internal medicine and its subspecialties are projected to face a malpractice claim by the age of 45.

The number is even higher for physicians in surgical specialties, where 80% are expected to face a claim by their 45th birthday.

Annual Probability of Facing a Claim

Specialty Claim (%) Physicians (n) Physician Age (y)
Neurosurgery 19.1 351 48.6 ± 8.2
Thoracic-cardiovascular surgery 18.9 437 50.6 ± 9.1
General surgery 15.3 1205 48.9 ± 9.4
Family medicine 5.2 4975 48.9 ± 9.7
Pediatrics 3.1 1616 45.8 ± 9.4
Psychiatry 2.6 3011 52.5 ± 8.7

Specialties that were most likely to face malpractice claims were often not those with the highest average payments. The average for neurosurgeons was $344,811, which was less than the average payment for pathologists ($383,509) or for pediatricians ($520,924), even though neurosurgeons were several times more likely to face a claim in a year.

The estimated correlation between the proportion of physicians with a claim and the average payment amount was 0.13 (P = .52).

"Our projections suggest that nearly all physicians in high-risk specialties will face at least one claim during their career; however, a substantial minority will not have to make an indemnity payment," the authors point out.

Tort Reform

Alex Valadka, MD, a spokesperson for the American Association of Neurological Surgeons and the Congress of Neurological Surgeons, said this study clearly shows physicians are under attack. "I'm concerned this will bolster defensive medicine — a practice that is believed to cost our nation billions in unnecessary dollars."

Dr. Valadka, a practicing neurosurgeon in Austin, says he's impressed by the effect tort reform has had in the state of Texas. "Have you heard of the Texas miracle?" he asked. "Since the 2003 law that capped malpractice awards, we've seen a complete reversal in problems like this and physicians have been flooding to the state." Some estimate that 20,000 physicians have relocated to Texas since the law was passed.

"You can't argue with results," Dr. Valadka said.

But not everyone is convinced. "Limiting payments will not change the frequency of litigation," Dr. Chandra said. He argues that physicians should think beyond traditional policy approaches.

Apology Laws

"We've seen evidence of apology laws being effective," Dr. Chandra said.

Some institutions experimenting with the simple approach of having physicians apologize to patients for injury have observed a decline in litigation.

"In most places, doctors don't apologize to patients because their apology is admissible in court. It would be nice to see that change."

The study was supported by the RAND Institute for Civil Justice, the National Institute on Aging, and the National Institute on Aging Roybal Center at the University of Southern California. The researchers have disclosed no other relevant financial relationships.

N Engl J Med. 2011;365:629-636. Abstract

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