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Most Physicians Will Be Sued for Malpractice by Age 65

Robert Lowes Medscape

August 17, 2011 — The risk of getting sued for malpractice in any given year ranges from 2.6% for psychiatrists to 19.1% for neurosurgeons, but over a medical lifetime, most physicians across all specialties can expect to face at least 1 lawsuit, according to an article published today in the New England Journal of Medicine (NEJM).

The findings, drawn from the files of a major malpractice insurance carrier with clients across the country, represent more fodder for the ongoing debate on tort reform, a subject dear to organized medicine.

Physicians in the 5 least-sued specialties — psychiatry, pediatrics, a category called “other specialties” in the study, family medicine, and dermatology — have a 75% chance of getting sued by age 65. The odds increase to 99% for physicians in the 5 most-sued specialties: neurosurgery, thoracic cardiovascular surgery, general surgery, orthopaedic surgery, and plastic surgery.

Despite physicians having a high lifetime risk for malpractice litigation, most plaintiffs do not receive a payment in the form of a settlement or jury award, write lead author Anupam Jena, MD, PhD, from Harvard Medical School, Boston, Massachusetts, and coauthors, echoing what other students of medical liability have found. On a yearly basis, 7.4% of all physicians are hit with a malpractice claim, but only 22% of these claims lead to a payment. Through age 65, physicians in the low-risk specialties run a 19% risk of facing a suit that pays off for the plaintiff, compared with a 71% risk for the high-risk specialties.

The size of average payments across specialties also was all over the map, ranging from $117,832 for dermatologists to $520,923 for pediatricians. However, this variability does not appear related to how often a particular specialty is sued. Neurosurgeons, for example, are roughly 6 times more likely to face a malpractice suit than pediatricians, but their average payment of $344,811 is substantially lower.

Raw Fear

The high likelihood of a malpractice suit at some point in a medical career, whether or not it results in a payment, helps explain physicians’ persistent worries about litigation, according to the authors. Simply put, physicians fear the sheer fact of being sued, and not just having a jury award or settlement on their record.

“Physicians can insure against indemnity payments through malpractice insurance,” write Dr. Jena and coauthors, “but they cannot insure against the indirect costs of litigation, such as time, stress, added work, and reputational damage.”

Tom Baker, JD, a professor of law and health sciences at the University of Pennsylvania Law School, said the NEJM study sheds light on why physicians feel under siege.

“I have always maintained that there is nothing short of prohibiting lawsuits that will eliminate the fear of a medical malpractice suit,” Baker told Medscape Medical News. “A claim without a payment is just as disturbing as a claim with one.”

Nonmeritous vs Frivolous

To an association representing malpractice insurance carriers, the NEJM study is a call not to prohibit malpractice lawsuits but instead to reduce their number by placing caps on noneconomic (pain and suffering) damages and enacting other tough restrictions on plaintiffs and their lawyers.

“This study validates what the PIAA [Physician Insurers Association of American] has reported for decades — that the vast majority of claims and suits brought against healthcare providers have no merit,” said Brian Atchinson, president of the PIAA, in a statement issued to Medscape Medical News.

“Our figures show that 70% of the claims and suits brought against doctors do not result in payments to patients. Furthermore, for claims resolved at verdict, the defense prevails 80% of the time. Despite these facts, as a result of our flawed and inefficient medical liability system, healthcare providers continue to be subjected to unnecessary stress and time away from caring for patients, as the study noted. The PIAA will remain diligent in working for reform in the best interests of both patients and physicians alike.”

Legal experts note that nonmeritous claims are not the same thing as frivolous claims — “frivolous” being a war cry in the tort-reform debate.

“Frivolous implies there’s no serious injury,” said study coauthor and economist Amitabh Chandra, PhD, a professor of public policy at the Harvard Kennedy School of Government, in an interview with Medscape Medical News. “Many cases involve an injury when there is no malpractice. That doesn’t make them frivolous.”

Tom Baker agrees.

“People who bring a lawsuit have an outcome that wasn’t supposed to happen,” he said. “It’s exceedingly difficult to find out why. When I read [the NEJM study], it confirms to me that the nonmeritous claims are being weeded out. The system works.”

Physicians are understandably upset, said Dr. Chandra, about the hassle factor of malpractice claims, even when they prevail. However, they err in advocating purported solutions such as a limit on noneconomic damages, the key provision of a bill pending in Congress called the Help Efficient, Accessible, Low-Cost, Timely Healthcare Act. Passage of this bill in a Democrat-controlled Senate is considered unlikely.

“It’s the wrong policy lever,” said Dr. Chandra, contending that it does nothing to address the problem of too few malpractice victims receiving justice. Ninety-seven percent of patients who are injured by medical malpractice never file a claim, he said.

Dr. Chandra favors alternative reforms such as a no-fault system for certain classes of injuries, special medical malpractice courts, and policies that encourage healthcare providers to voluntarily disclose errors, apologize, and make good on injuries outside of court.

The study was supported by the RAND Institute for Civil Justice, the National Institute on Aging, and the National Institute on Aging Roybal Center at the University of Southern California. Coauthor Seth Seabury, PhD, reports receiving grant support from the RAND Institute for Civil Justice. The authors have disclosed no other relevant financial relationships.

N Engl J Med. 2011;365:629-636. Abstract