Surgical Malpractice Claims Drop, But Pay-Outs Increase

Caroline Helwick

November 14, 2011

November 14, 2011 (San Francisco, California) — Surgical malpractice payments are decreasing in number, but payment amounts are increasing, according to an analysis of national malpractice trends reported here at the American College of Surgeons 97th Annual Clinical Congress.

"We found that significant variation in payments between states exists. This heterogeneity of payment sizes suggests that there is a profound impact from the local legal environments," said Ryan K. Orosco, MD, from the University of California at San Diego.

Dr. Orosco and colleagues used the National Practitioner Data Bank (NPDB) to evaluate what is happening today with malpractice claims in the surgical specialty. The NPDB reflects the mandatory reporting system of medical malpractice payments and adverse actions related to limitations on licensure, clinical privileges, professional society membership, and participation in federal programs. It contains data reported by malpractice carriers, hospitals, professional societies, and state licensing boards since 1990. Malpractice payments made directly by practitioners themselves (personal funds) do not need to be reported to the NPDB.

The researchers wanted to indentify the factors affecting surgical malpractice payment size and to evaluate predictors of malpractice claims ending in large payments.

"There are reports in the literature suggesting that an estimated 2% to 3% of patients suffer medical harm due to negligence, and about half these patients will recover damages. I think many of us would agree that the current malpractice system is flawed.... Anything that adds data to the discussion is a good thing, and that is our goal here," Dr. Orosco explained.

Review of the NPDB

The researchers performed a retrospective analysis of the NPDB from 1990 to 2006 to identify malpractice payments involving surgeons and surgical residents. Large payments were defined as those exceeding $1 million. Using multivariate regression analysis, they evaluated predictors of large payments, which were adjusted to 2006 dollars.

They identified 58,518 claims, which were primarily filed by females (62%) and by inpatients (63%) whose mean age was 42 years. Only 1% of the claims were made against surgical residents.

The total number of claims decreased by 154 per year over time (P < .0005), but payment sums increased by $3200 per year (P < .0005). The median payment was $132,915; the 95th percentile claim was $983,263, Dr. Orosco reported.

States with the highest payment amounts were Illinois, Connecticut, Delaware, and Wisconsin; those with the lowest amounts were Michigan, Kansas, South Carolina, and Texas.

"The 4 highest states happen to be states that do not have damage caps, while the lowest 4 do," he noted.

Most payments were made by an insurance company or self-insured payment (96%); the remainder were paid with state funds. Most claims were settled out of court (95.2%), with only 4.8% proceeding to a formal court judgment, he said.

Most Common Allegation: "Improper Performance"

The vast majority of malpractice allegations fell into 2 groups: improper performance (41.8%) and allegations "not otherwise classified" (24.5%).

Others were related to retained foreign body (6.0%), improper management (5.9%), wrong body part (3.2%), unnecessary procedure (3.0%), improper technique (2.4%), failure or lack of informed consent (2.3%), and failure to recognize a complication (2.0%). A very small percentage of claims were for delay in performance, failure to perform a procedure, and patient positioning problem.

The most common alleged patient outcomes were minor permanent injury (19.7%), significant permanent injury (18.2%), major temporary injury (17.5%), minor temporary injury (16.0%), death (15.2%), and major permanent injury (8.3%), Dr. Orosco reported.

Quadriplegia, brain damage, lifelong care, and emotional injury each accounted for less than 2% of claims. Understandably, he noted, they carried high payment amounts.

With minor temporary injury as the reference ($0), the coefficients for these most severe injuries were $806,022 for quadriplegia, brain damage, or lifelong care (P < .0005), and $497,071 for major permanent injury (P < .0005).

A multivariate linear regression analysis looking at the characteristics of the surgical malpractice claim that affected payment size showed that the most significant predictors of large amounts were inpatient stay (P < .0005), age younger than 10 years (P = .005), and age older than 70 years (P < .0005).

Other predictors of large payment amounts were unnecessary procedure, improper technique, and improper performance.

Predictors of Major Payments

We then asked what the predictors of large surgical malpractice payments were, Dr. Orosco said.

By far the greatest likelihood of a payment of at least $1 million was an outcome of quadriplegia, brain damage, or need for lifelong care, which carried an odds ratio (OR) of 142. ORs were also very high for major permanent injury (OR, 66), death (OR, 27), and significant permanent injury (OR, 23).

Alleged wrongdoing, delay in performance, and failure to perform a procedure each had ORs of 1.6. Failure to recognize a complication, improper technique, and improper performance had ORs of 1.2.

Delay in performance, however, was the only statistically significant factor (P = .042), he added.

"This is a nice analysis of a very large, very comprehensive database," said Scott E. Regenbogen, MD, from the University of Michigan, Ann Arbor, the session moderator. He suggested that although many surgeons are skeptical of the accounting of malpractice claims, believing they do not represent "the reality of safety in the hospital..., large analyses of malpractice databases such as this one show that most malpractice cases represent real errors and preventable errors."

Dr. Regenbogen pointed out that "most large settlements represent serious injuries often caused by negligence and ones that could be prevented."

He said that Dr. Orosco's findings might be "a canary in the coal mine for what is going on with safety nationwide," but cautioned that there are several interpretations — surgery has gotten safer because there are fewer claims or riskier because the claims amounts are larger.

Dr. Orosco and Dr. Regenbogen have disclosed no relevant financial relationships.

American College of Surgeons (ACS) 97th Annual Clinical Congress: session SF14. Presented October 25, 2011.

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