Beyond the Hearsay: A Look at Malpractice

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To say the fear of malpractice influences U.S. specialists making clinical decisions may be an understatement, but to better understand how much, several experts share what their research and personal experiences have revealed. Also, is reform warranted to curtail defensive medicine, and if so, what is the proper method?

Just the facts

While many clinicians speak about the impact of malpractice, the actual statistics have been vague. Thus, Anupam B. Jena, MD, PhD, from the department of medicine at Massachusetts General Hospital in Boston, and colleagues set out to assess the proportion of physicians who face malpractice claims per year, the size of those claims and the cumulative career malpractice risk according to specialty (N Engl J Med 2011;365:629-636).

"While it is well known that obstetricians and neurosurgeons face a higher likelihood of being sued and face higher malpractice premiums, besides those two generalizations, we really knew little about the individual specialties," says Jena, who analyzed new malpractice claims data from a large, physician-owned professional liability insurer.

Across 25 specialties, they found that 7.4 percent of physicians out of 40,916 evaluated had at least one claim per year, whereas only 1.6 percent made an indemnity payment—meaning that 78 percent did not result in payments. There was significant variation across specialties in the probability of facing a claim, ranging annually from 19.1 percent in neurosurgery, 18.9 percent in thoracic-cardiovascular surgery and approximately 8 percent in cardiology.

"While these figures may seem low, if you apply them to a lifetime in clinical practice, there is nearly a 100 percent probability that physicians in high-risk specialties will face a claim," says Jena. "It's alarming to think about. For physicians who practice over 30 years, the lifetime risk is very high and that shapes one's perception of the malpractice environment."

Specialties in which physicians were most likely to face claims were not always specialties in which indemnity claims were most prevalent, Jena et al found. Across specialties, the mean indemnity payment was $274,887, and the median was $111,749. Also, specialties that were most likely to face indemnity claims were often not those with the highest average payments. For example, the average payment for neurosurgeons ($344,811) was less than the average payment for pediatricians (the highest at $520,924), even though neurosurgeons were several times more likely to face a claim in a year. Meanwhile, thoracic-cardiovascular surgery and cardiology hovered at a close average of approximately $300,000, with cardiology slightly higher.

Interestingly, Jena and colleagues have started examining common causes of claims, and how they relate to payments. A missed aortic dissection is a frequent claim that results in payment to the patient. Also, the cardiologist who performs the second interpretation of an EKG to confirm that the initial physician's interpretation often has claims filed against him or her. "This is very interesting, because the cardiologist never even saw the patient," says Jena.

Physicians, or their facilities, can insure them against indemnity payments through malpractice coverage, but physicians cannot insure themselves against the indirect costs of litigation, Jena et al wrote. There is no evidence on the size of these indirect costs, but direct costs can be large. One study of medical malpractice suggested that nearly 40 percent of claims were not associated with medical errors. Although a low percentage of such claims led to payment of compensation (28 percent, as compared with 73 percent of claims with documented medical errors), they accounted for 16 percent of total liability costs in the system (N Engl J Med 2006;354:2024-2033).

These lawsuits also can cause stress, anxiety, reputational damage and time away from work, Jena says. In fact, Michael S. Lauer, MD, director of the division of prevention and population sciences at the National Heart, Lung and Blood Institute, was sued for malpractice for a decision he made as an attending physician at the Lahey Clinic in Burlington, Mass., in 1993. Lauer received the claim three years later, while working as a cardiologist at Cleveland Clinic, and the case "dragged on for years with lots of paperwork."

The trial did not occur until October 2001, during which time Lauer spent a "stressful time" in Massachusetts. After the trial, where he was exonerated,