Doctors With Multiple Malpractice Claims More Likely to Enter Solo Practice

Tara Haelle

March 27, 2019

Physicians with multiple paid malpractice claims are no more likely than physicians with no claims to pick up and move to another state, but they have more than double the odds of moving into solo practice, according to a study published online today in the New England Journal of Medicine (NEJM).

"The fact that they are more likely to move to small practices or to solo practices raises a red flag," David M. Studdert, LLB, ScD, lead author and a professor of law and medicine at Stanford University in California, told Medscape Medical News. Approximately one quarter of US patients receive primary care from solo practices, he and his colleagues note in their paper.

"From a safety standpoint, physicians with multiple malpractice claims are probably the least desirable practitioners we least want to be in solo practice," Studdert said. "Solo practice has less oversight, less ability to access colleagues, and generally a degree of professional isolation that is not well suited to people who are risky practitioners."

However, Studdert said, the lack of geographic movement among doctors with high numbers of paid claims was both surprising and reassuring. It was concern about a doctor's ability to leave a state and start with a clean slate that led Congress to pass the Health Care Quality Improvement Act of 1986, which led to the creation of the National Practitioner Data Bank (NPDB).

All paid malpractice claims for individual physicians are required to be reported to the NPDB, and hospitals are required to consult the databank when hiring physicians.

Studdert and colleagues used data matched between the NPDB and the Medicare Data on Provider Practice and Specialty to analyze geographic or practice movements among physicians according to their paid malpractice claims. They limited the analysis to US physicians aged 35-65 years of age who practiced from 2008 through 2015.

The study grew out of the questions that their previous research raised, Studdert said. The previous study, also published in NEJM , identified the clustering of claims among a small proportion of practitioners and "underlined that this was an important population for understanding the practice of malpractice litigation across the workforce," he said.

Among 480,894 physicians with a total of 68,956 claims in this study, the vast majority of doctors (89%) had no claims at all, and only 8.8% had one claim. But 38.9% of all claims came from a small proportion of doctors with at least two claims — just 2.3% of all physicians.

These are the physicians that potentially pose a safety risk to patients, Studdert told Medscape Medical News.

"If you believe, as we do, that physicians that attract multiple claims are a potential source of patient safety risk, then it's good for regulators, hospitals, and insurers to be more attuned to them, but it would also be good for other physicians to know," he said. While the NPDB's data is not publicly available, doctors and medical societies have access to it. "It could affect referral patterns and willingness to bring practitioners into a medical group."

The more paid malpractice claims physicians had, the more likely they were to stop practicing medicine — but more than 90% continued to practice. Doctors with five or more paid claims had 1.45 times greater odds of leaving practice compared with physicians with no claims, and those with just one claim were slightly more likely to leave as well (odds ratio [OR], 1.09).

Doctors with at least five paid claims were also more than twice as likely to shift to solo private practice (OR, 2.39). While this finding is not necessarily surprising, it is potentially concerning since a history of malpractice claims is less likely to be discovered when in private practice, Studdert suggested.

"Shifts to smaller practices may become necessary if a hospital or practice group severs its ties with a claim-prone physician or imposes burdensome remedial actions as a condition of recredentialing," the researchers write. Concerns about reputation may also motivate doctors to switch practice settings.

Yet the "lack of institutional and peer support may be especially problematic for physicians with multiple claims, amplifying risks of additional claims and harms to patients," they write. "Professional isolation — as both a consequence of and risk factor for malpractice claims — has not been well studied. It should be."

Another challenge is how to devote more scrutiny to practitioners with more claims, Studdert told Medscape Medical News. "The question is where in the system would we do that?"

While practitioner boards are one possibility, Studdert sees more potential in the pressure liability insurance companies could exert. "What enables these practitioners to continue is that they can get liability insurance," he said.

However, insurers don't have access to the NPDB data and must rely on physicians' disclosures on their applications. Opening up that data to insurers, or the public at large, could open a can of worms. Studdert said he's torn on the best way to handle access to the NPDB data.

"The people we're identifying are outliers, so it does require some nuance in thinking about who's risky and who's not risky," he said. Physicians in specialties with high-risk patients or who do high-risk procedures are going to have more claims. While their study took specialties and geographic location into account — comparing, say, Floridian neurosurgeons with other Floridian neurosurgeons — insurance companies or patients may not.

"You don't want liability insurers to be able to restrict insurance only to doctors with no claims," Studdert said. "That could produce some real coverage and supply problems in certain parts of the country."

At the same time, patients typically must rely on credentialing bodies or hospitals and large practice groups to vet physicians with multiple malpractice claims. "I would not want to be cared for by a physician who's had five paid claims in the last decade, nor would I want my family member to be cared for by that person," Studdert said. Some states make this data publicly available, but not all, and there's little evidence that patients or referring physicians access it.

There's also the risk that making the data public will lead physicians and insurers to find ways to avoid reporting claims. As it is, one limitation of this study is the likely underreporting of claims due to corporate shielding, when individual doctors are dropped from a claim and only the hospital pays it, thereby avoiding the requirement to report the doctors involved in the claim. While this practice "is thought to result in some degree of underreporting, we don't know how much," Studdert told Medscape Medical News.

Another study limitation is the underrepresentation of specialties with few or no Medicare patients, such as OB-GYNs, whose claims comprise 12% of all malpractice claims in the NPDB but only 2% of this study's data sample. The researchers also focused only on paid claims and none of the approximately 70% of claims that don't result in payments.

"Finally, our study design and results focused on testing for relative differences among physicians," the researchers write. "From a policy perspective, however, the absolute number of some practice changes by high-risk practitioners is important too, regardless of how much that number conforms to or diverges from norms in the medical workforce," especially since most claim-prone doctors continued delivering as much care as claim-free ones.

The research was funded by SUMIT Insurance and the Australian Research Council. Studdert and one co-author report grants from SUMIT Insurance during the study; the remaining co-authors have disclosed no relevant financial relationships.

N Engl J Med. 2019;380:1247-55. Abstract

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