Physicians Favor Malpractice Screening Panels to Deter Suits

December 11, 2015

Physicians favor expert medical panels that screen claims for merit before they proceed in court more than any other kind of tort reform, a new Medscape survey on malpractice litigation finds.

Eighty-one percent of physicians cited pretrial screening panels as one of the best ways to discourage malpractice suits compared with 62% who chose caps on noneconomic (pain and suffering) damages and 48% who said cases should be tried in special health courts.

Screening panels, found in 17 states, are designed to winnow out nonmeritorious claims and avoid expensive court battles. A panel ruling in favor of a physician does not bar a patient from seeking his or her day in court, but in most states, a defendant can introduce the opinion as trial evidence. Panels have at least one physician member.

Nearly two thirds of states have adopted pretrial screening panels at some point in the last 40 years. Successful constitutional challenges have whittled down that number, as have outright repeals by state legislatures, according to Michelle Mello, PhD, an expert on medical liability at Stanford University. Similar to other experts, Dr Mello said pretrial screening panels have compiled a disappointing track record.

"Panels are popular among physicians, but the evidence for their effectiveness in achieving any of the purposes for which they were set up is just not there," Dr Mello told Medscape Medical News. "One reason is that it's hard to screen out cases at an early stage because more discovery is often necessary to get a real sense of what has happened.

"Panels can throw out obviously frivolous cases, but those are the minority."

A study by attorney Jean Eggen published in the Journal of Health and Life Sciences Law in 2013 reached similar conclusions. Eggen, who teaches at Widener University School of Law in Wilmington, Delaware, writes that "all indicators point to the need for more complete data on the effectiveness of screening panels and other malpractice reforms."

A tort reform further down the list for physicians is banning lawyers from taking malpractice cases on contingency: only 37% of participants named that as a good deterrent to lawsuits in the Medscape survey. Another 13% said physicians should stop making medical errors in the first place. The small percentage of physicians who answered that way reflects the prevailing opinion in the profession that a dysfunctional legal system, not medical error, is the primary driver of malpractice ligation.

Four in 10 Plaintiffs Receive Some Kind of Payment

Medscape's survey on malpractice ligation, completed by almost 4000 primary care physicians and selected specialists, confirmed what previous studies have found: Getting sued by a patient is as common as the common cold. Forty-seven percent of physicians said they were named in a lawsuit that included other defendants, and 12% said they were sued as the sole defendant in the case. Obstetrician-gynecologists reported the highest rates of malpractice litigation; oncologists the lowest. In an interesting sidelight, oncologists were the most likely (26%) to sue another physician whose error harmed him or her, whereas obstetrician-gynecologists were the least likely (15%).

The most common allegations made by malpractice plaintiffs are "failure to diagnose" and "patient suffered an abnormal injury," each cited by 31% of physicians who have been sued. At the tail end of allegations were "failure to follow safety procedures" and "improperly obtaining/lack of informed consent," tied at 4%.

Only 16% of the lawsuits reported by Medscape readers were resolved by a verdict at trial, and when that happened, physicians won about 80% of the time. Roughly 38% of cases were settled, usually before a trial, and the rest were either voluntarily dropped by the plaintiff or dismissed by the court. In all, only about four in 10 cases resulted in the plaintiff receiving a settlement or court-awarded damages.

No matter the outcome, malpractice litigation is convulsing, many Medscape readers said. Twenty-six percent of male physicians and 37% of female physicians said being a defendant was "horrible, one of the worst experiences of my life," and 20% of either sex described it as "bad, very disruptive and humiliating." Especially stinging aspects of litigation, readers said, were self-doubt, the implication of incompetence, negative effects on marriage and family, and "feeling helpless while being lied about by colleagues, patients and lawyers."

And the torture is prolonged: For 45% of sued physicians, the case dragged out for 3 years or more.

Fortunately, healing happens. Forty-five percent of all sued physicians reported no long-term emotional or financial fall-out. However, 30% said they no longer trust patients and treat them differently than before.

If asked whether they would have done anything differently, 51% of sued physicians chose the self-assured response of "Wouldn't change a thing, my work was standard of care." Another 19% said they would have improved their chart documentation, which was a key piece of advice these embattled physicians had for their colleagues.

Sued physicians also recommended getting good legal advice earlier than later, diligently preparing for their case, and not hitting the panic button. Most physicians hit with a malpractice suit, after all, will likely emerge as a winner, at least legally.

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