Most Malpractice Claims Attributed to Few Physicians

Tara Haelle

January 27, 2016

Just 1% of physicians accrued a third of all paid malpractice claims over the course of a decade, according to a study published in the January 28 issue of the New England Journal of Medicine. An analysis of common risk factors among physicians with any paid claims included being male, being older, having a previous claim, and practicing as part of several subspecialties, such as surgical subspecialties and obstetrics-gynecology.

"The most important implications of these findings is that 'frequent flyers' are a significant problem, and identifying and remediating them early may help improve the quality of the healthcare system," lead author David Studdert, LLB, ScD, from Stanford Medical School and Stanford School of Law in California, told Medscape Medical News. "It suggests that there is some underlying factor that is predisposing certain physicians to malpractice claims," he continued. "Provision of substandard care is the obvious culprit. Poor communication skills is likely to be another factor in this mix."

Dr Studdert's team analyzed 66,426 claims in the National Practitioner Data Bank that were paid against 54,099 MDs and DOs in the United States from 2005 through 2014, excluding claims against physicians aged 65 years or older to remove the confounder of retirement for no additional claims.

In attempting to isolate characteristics of the physicians with multiple claims, the researchers considered covariates including previous paid claims, qualification, specialty, age, sex, trainee status, practice location, and medical school location (US or other). The authors further controlled for specialty-specific risk "by including a variable indicating the incidence of paid claims per 1000 physicians in each specialty and year."

Although only 6% of all 915,564 active US physicians during that decade, as estimated by the American Medical Association, had a paid claim, about 1% of physicians with at least two paid claims accounted for 32% of all claims. Further, 12% of all claims were attributed to just 0.2% of physicians, all of whom had at least three paid claims.

An analysis after adjustment for covariates revealed that each additional paid claim significantly increased the likelihood of another paid claim. Physicians with two paid claims, for example, were twice as likely to have another compared with physicians with just one paid claim (hazard ratio [HR], 1.97; 95% confidence interval [CI], 1.86 - 2.07). Similarly, the risk for another paid claim tripled for physicians with at least three existing paid claims (HR, 3.11; 95% CI, 2.84 - 3.41), and the risk for an additional paid claim was 12 times greater for physicians with at least six or more paid claims (HR, 12.39; 95% CI, 8.69 - 17.65).

A similar pattern emerged within subspecialties, but several specialties also showed an independent increased likelihood of recurrence. Neurosurgeons, orthopedic surgeons, general surgeons, plastic surgeons, and obstetricians-gynecologists had approximately twice the risk for an additional paid claim compared with internal medicine physicians.

"In general, the high-risk specialties tend to be the ones that involve invasive procedures, where risk of adverse outcomes is higher, irrespective of whether the care was appropriate or negligent," Dr Studdert told Medscape Medical News.

Lucian Leape, MD, a professor of health policy at Harvard School of Public Health in Boston, Massachusetts, who was not involved in the study, agreed that poor outcomes play a role here, as well as false expectations of particular outcomes from plastic surgeons.

"Neurosurgeons are not less careful — they are more careful — than others, but they often get bad results because the surgical techniques have limitations, and the results are devastating," Dr Leape told Medscape Medical News. "Then anguished families sue."

Further, those fields are more likely to result in very large injuries, especially deaths, and malpractice claims generally require the harm to be significant enough to justify the expense of bringing the claim, explained Stephen Sugarman, JD, a professor at the University of California Berkeley School of Law, who was not involved in the study. "Malpractice that yields small injuries usually has to be just suffered by patients who go uncompensated," Sugarman told Medscape Medical News.

Meanwhile, those with the lowest risk for an additional paid claim were psychiatrists, with a 40% lower risk, and pediatricians, with a 29% lower risk.

"Their treatments seldom inflict physical harm, and they spend much more time on the personal relationship," Dr Leape said. "Many suits occur because the patient is unhappy with how the doctor treated them, not about the results."

Age and sex were also risk factors for recurrence: physicians younger than 35 years had about a third of the risk for older physicians, and men had a 38% higher risk than women, with the latter finding a common one in past research, Dr Studdert said.

"There is some evidence indicating this may be due to female physicians, on average, having superior communication skills and rapport with patients," Dr Studdert told Medscape Medical News.

Although Dr Studdert found the age-associated risk perplexing, Dr Leape suggested older men may be worst with communication skills, "having been brought up in a paternalistic and autocratic culture, which the younger doctors are thankfully rejecting," he told Medscape Medical News.

The authors also issue the caveat that "claim concentrations over a given period of time are a function of two factors: an individual physician's propensity to attract claims and the baseline incidence of claims in the population." Although their analysis focused on the former and attempted to adjust for the latter, "the two phenomena are difficult to disentangle," they write. "The consistency of our main results in within-specialty analyses was therefore reassuring."

All the experts who spoke to Medscape Medical News agreed the findings mean that action should be taken to understand why some physicians accrue repeated claims, and to address those underlying reasons.

"In some cases, it might just be bad luck, and in some cases, it might not have been malpractice at all," Sugarman said. "But for some doctors, repeated malpractice that leads to repeated serious injury or death might well justify additional within-the-medical-profession intervention," which is no easy feat, he noted. One possibility might be tying physicians' paid malpractice claims to hospital quality data for the hospitals where they have privileges, he suggested.

Simply terminating liability insurance or revoking clinical privileges of physicians with multiple claims is not a meaningful solution, however, and may even worsen the situation if those physicians move to practice elsewhere, Dr Studdert said.

"Our hope is that this study will help motivate regulators, liability insurers, and healthcare organizations to redouble their efforts to address the problems posed by a small number of healthcare practitioners who have troubling malpractice records," Dr Studdert told Medscape Medical News. "More constructive responses are needed; namely, targeted programs that help restore multiclaim physicians to safe practice. Or, in rare cases where remediation is not possible, very high-risk physicians may just need to withdraw from clinical care."

No external funding was reported for this research. Dr Studdert and one coauthor reported grant support from the Risk Authority unrelated to this study. The other authors and commentators have disclosed no relevant financial relationships.

N Engl J Med. 2016;374:354-362.


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