Physicians plagued by open malpractice claims

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A study of more than 40,000 physicians covered by a national medical liability insurer revealed that the average physician spent 50.7 months, or 10.6 percent of an estimated 40-year career, practicing with one or more open, unresolved malpractice claims pending. The study, published in the January issue of Health Affairs, found that cardiologists slightly exceeded the average, at 11 percent, and diagnostic radiologists were slightly below the national average, at 10 percent. 

Cardiothoracic surgeons spent 20 percent of their career with open claims, second only to neurosurgeons, at 27 percent.

Seth A. Seabury, PhD, of RAND in  Santa Monica, Calif., and colleagues have been studying the medical malpractice system in the U.S. with an eye toward quantifying risk trends by specialty and identifying actionable areas to make the system more efficient and effective. In this portion of the study, they investigated the time to resolution of malpractice claims, postulating that an open claim causes stress, presents an administrative burden, damages the physician’s reputation, spurs the practice of defensive medicine, delays learning from mistakes and takes time that would otherwise be spent on patient care. The researchers looked at differences in resolution times based on specialty, severity of injury and whether or not the patient ultimately received payment on the claim.

The researchers used a database of claims records for a medical liability insurer with insured physicians in 50 states and the District of Columbia. Because physicians from California were over-represented in the database, Seabury et al weighted each physician’s data by the relative number of non-federal physicians in the Health Resources and Services Administration’s Area Resource Files. The researchers claimed that the resulting mean claims number and payment data is in accord with figures in the National Practitioner Data Bank.

The study considered only claims closed between 1995 and 2005, and excluded any that did not result in either a payment to the claimant or some defense cost, explaining that these no-cost claims often represented situations in which the physician notified the insurer of an adverse event but the patient never filed a malpractice claim. All analyzed claims contained the date of the injury, the date the claim was filed, the date of closure, the alleged severity of the injury and the ultimate disposition of the claim. Researchers used the National Association of Insurance Commissioners’ nine-point scale to delineate the severity of the injury: fatal injury; four categories of permanent injury; three categories of temporary injury; and emotional injury only.

Assuming a hypothetical medical career lasting from ages 30 to 70, the researchers computed the number of days per year each physician had an open claim for each year that physician was in the sample, then used multivariable regression to determine the number of open claim days per year according to the physician’s age and specialty.

Overall, among all physicians, the mean time from incident to claim was 22.8 months, and the mean time from claim filing to resolution was 20.3 months. Thus, mean time from incident to resolution was 43.1 months. The more severe the alleged injury, the longer the resolution time: for cases involving emotional injury only, 65 percent were resolved in a year or less, compared with 49 percent of cases involving temporary injury and 38 percent of cases involving permanent injury or death. In cases involving permanent injury or death, 17 percent required more than three years to resolve and 3 percent required five years or more.

Physicians practicing anesthesiology, internal medicine, plastic surgery and orthopedic surgery each were responsible for between 10 and 11 percent of the total claims filed during the sample period. Cardiologists were responsible for only 2 percent of the total claims, radiologists for 2.3 percent, and cardiothoracic surgeons for 3.1 percent.

The researchers pointed out that physicians spent a substantial amount of time with open claims that ultimately did not result in payment to the claimant, noting that 50 percent of claims that did not result in payments took two years or more to resolve. Of the mean of 52.9 months over a 40-year career that cardiologists spent with an open claim, 41.5 of those months were waiting for the resolution of claims that did not result in payment. Of the mean of 48.2 months over a 40-year career that radiologists spent with an open claim, 32.6 of those months were spent waiting for the resolution of claims that ultimately did not result in payment.

“[C]laims that did not result in payment accounted for more than 70 percent of the time physicians spend with open claims. This finding highlights the importance of considering physicians’ and patients’ experiences with all claims, not just the subset that result in awards, to measure the true costs of the malpractice system,” the authors wrote.

Seabury et al concluded that “understanding factors associated with time to resolution of malpractice claims is important in assessing the impact of malpractice reforms ... A fuller understanding of how time to resolution of malpractice claims is affected by various malpractice reforms is important to reducing cost and inefficiency in the malpractice system.”

Does fear of malpractice influence clinical decisions, and if so, how much? Experts share their experiences and insights in "Beyond the Hearsay:  A Look at Malpractice" in the March 2012 issue of Cardiovascular Business.