Malpractice in America: Is Anything Getting Better?

Anne L. Finger, MA

Disclosures

January 06, 2014

In This Article

Do We See Rays of Hope for Medical Malpractice?

Michael Matray, Editor of Medical Liability Monitor, says, "The situation has definitely improved in the past 5 years," in part because of the emphasis on risk management, with physicians receiving credits for attending seminars and advice from risk managers in their offices on how to do better. "Supporters of tort reform have been very successful over the past couple of years," he adds, and it's now very difficult to bring a claim to trial.

"It's expensive for plaintiff attorneys; they have to invest a lot and may not be able to make a profit," he says. Although claims are at an historic low and claims frequency is down, he says, malpractice insurance is still a "giant investment in the physician's work life. It would be wrong to ask doctors, 'Why are you complaining?'"

But to defense attorney Michael Sacopulos of Sacopulos, Johnson & Sacopulos in Terre Haute, Indiana, the situation seems much the same as it did 5 years ago. "Some say there are fewer claims being filed, but I don't see that."

He finds claims of the same value and nature as in the past, with 1 exception: "I have seen an effort to bypass med-mal rules and regulations, for example, through product liability cases involving hardware installation -- putting the doctor into the chain of responsible parties. The plaintiff bar positions a claim to avoid the damage caps."

Brian Atchinson, CEO of PIAA (Physician Insurers Association of America), says, "Things have been relatively stable for a few years, but there's tremendous uncertainty about the future: healthcare delivery, the relationships among physicians, hospitals, nurse practitioners, and physician assistants -- things are evolving rapidly in so many ways." Concerning the reduction in rates, he says, "One could say they'd be even lower if the cost of claims were not so high."

According to Richard Anderson, MD, CEO of The Doctors Company, the med-mal situation today is "a mixed bag. Over the past 5-6 years, some things are better: the frequency of claims declined 40% in 2012 compared with 2004. That's welcome." But the rising yearly cost -- 50% higher in 2012 than in 2000 -- is a concern. "Overall, there is still an unconscionably high number of claims. The average neurosurgeon has 1 claim every 5 years."

And yet, "We still win 82% of all claims, so most of the claims that the plaintiff's bar is filing are fruitless."

Taylor Lincoln, Director of Research for Public Citizen's Congress Watch, says that "Claims have gone down so much that there's not too loud a call for reform, and the issue has receded politically." He expressed concern that fewer claims mean a lot of injured people aren't getting help. But, he says, "I try to steer the debate: It's not about litigation; it's about errors. Though it's better for patients if they're getting more damage awards, the real solution is fewer errors."

What Are the Latest Developments With Medical Malpractice?

Overall, med-mal has clearly evolved over the past 10-15 years, says Atchinson. "There is now a much better understanding of loss prevention and risk management integral to any setting," he stresses. "Understanding patient safety is paramount and integral to care; it's woven in with loss prevention and risk management." With so many more people involved in care, he cautions, "handoff is critical."

Still, the potential impact of healthcare consolidation is a concern.

"It's hard to imagine it won't create disruptions, discontinuities, and unmet expectations," says Anderson. "So we can expect to see malpractice claims increase, because faceless institutions make more tempting legal targets than individual physicians."

For Sacopulos, the growing numbers of employed doctors represent a trend that's changing the nature of litigations. "The hospital has risk managers and its own insurance company. Lots of physicians are losing some degree of control." The most important trend, he feels, is that communication has become more convoluted because of electronic health records and health exchanges. "It's easier to miss something because of the volume of information or the way information is presented."

When doctors consolidate with hospitals, Anderson stresses, they must make certain there's no discontinuity in their insurance coverage. "Problems can occur when there's no prior acts coverage, but doctors can accommodate with either tail or nose coverage," he says. Otherwise, they may be exposed for cases arising from their practice before their joining the hospital.

This coverage can be costly, so it's important to make it part of the negotiation before signing the final agreement. Also of concern is the issue of the hospital's determination to settle a medical malpractice claim; although the doctor may strongly wish to fight it, he or she may have no say under the hospital's policy.

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