NEJM Study On Malpractice Risk By Physician Specialty

The New England Journal of Medicine released a new study in today’s issue, Malpractice Risk According to Physician Specialty, which concluded:

There are few recent estimates on the likelihood of malpractice claims and the size of payments according to physician specialty. Using physician-level malpractice claims from a nationwide liability insurer, we found substantial variability across specialties in each of these descriptors of liability risk. Specialties in which the largest proportion of physicians faced a claim were not necessarily those with the highest average payment size. For example, physicians in obstetrics and general surgery — both fields that are regarded as high-risk specialties — were substantially more likely to face a claim than pediatricians and pathologists, yet the average payments among pediatricians and pathologists were considerably greater. …

Our study uncovered an important aspect of malpractice liability: the high likelihood of claims that do not result in payments to a plaintiff. Annual rates of claims leading to indemnity payments ranged from 1% to 5% across specialties, whereas rates of all claims ranged from 5% to 22%. Our projections suggest that nearly all physicians in high-risk specialties will face at least one claim during their career; however, a substantial minority will not have to make an indemnity payment.

The study’s authors tied this all back into the core concern among tort reformers — “the perceived threat of malpractice among physicians” — but I think the real question should be, why is there so much medical malpractice?

We know from the 2006 study by a group at Harvard Medical School (which was also published in the NEJM), “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits,” that our medical negligence tort system gets it right three-quarters of the time, and, when it gets it wrong, favors the doctors.

The Harvard study found that three-quarters of lawsuits that resulted in compensation indeed involved bona fide malpractice, while only one-tenth of paid claims involved injures not caused by medical malpractice — and the plaintiffs in those cases received far less than the plaintiffs who had injures which even a panel of doctors thought were caused by medical malpractice. While only one-tenth of paid claims did not involve malpractice, one-quarter of bona fide medical malpractice victims did not recover any compensation. (I previously discussed the Harvard study here and here.)

It’s simple to connect the dots between the 2006 study and the current studies:

  • if 1% to 5% of doctors pay malpractice claims every year, and
  • even a panel of doctors agree that three-quarters of those paid claims involve bona fide malpractice, and
  • there’s also substantial rate of bona fide malpractice cases that don’t turn into successful claims, then:
  • between 1% and 5% of doctors commits malpractice serious enough to warrant a successful lawsuit every single year.

Little wonder, then, that the economic cost of malpractice is $20 billion annually — more than five times the cost of the entire malpractice system, insurance premiums, lawyers and paid claims included.

The study also added some empirical data about the relationship between particular specialties and the likelihood & size of claims:

Across specialties, the mean indemnity payment was $274,887, and the median was $111,749. The difference between the mean and median payment reflects the right-skewed payment distribution. 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 pathologists ($383,509) or for pediatricians ($520,924), even though neurosurgeons were several times more likely to face a claim in a year. The estimated correlation between the proportion of physicians with a claim and the average payment amount was 0.13 (P=0.52). The correlation between the proportion of physicians with an indemnity payment and the average payment was similar and was not significant. This suggests that factors driving the likelihood of a claim are largely independent of factors that drive the size of a payment.

That’s not surprising to medical malpractice lawyers. When considering whether or not to recommend litigation, we don’t just tell the clients with the largest damages “yes” and then work our way down, saying “no” at some arbitrary dollar amount.

The recommendation for litigation involves a balancing of factors:

  1. the likelihood of proving the physician breached the standard of care;
  2. the size of the provable damages that can be connected to the negligence;
  3. the predicted cost and duration of the litigation.

Incorporated within #1 and #2 are details specific to each specialty. Focus in particular on the “connected to the negligence” part — proving causation is simple in slip-and-fall cases but complicate in a wide variety of potential malpractice claims.

Pediatric malpractice claims, for example, are rare given the nature of what pediatricians do, or rather what they don’t do: they don’t typically diagnose or treat acute conditions. Pediatric malpractice litigation thus typically arises when a pediatrician fails to diagnose (or properly treat) a chronic condition, one that worsens during the malpractice and becomes either harder to treat or untreatable, an uncommon but devastating situation. Otherwise, pediatric malpractice goes under the radar, so to speak.

In contrast, surgical malpractice claims are more common because surgeons treat acute conditions and because the causal connection between the alleged malpractice is quite clear. The “causation” step thus typically isn’t a problem: the improper technique in surgery and the complications that arose were plainly “caused” by the negligence.

All in all, a useful an interesting study, one that hopefully brings us a little closer to the real issue: the need to reduce the volume and frequency of medical malpractice.

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  • Joe

    Yes, 100% of neurosurgeons express incompetence or negligence at some point in their careers and thus deserve to be sued. Clearly, these are people who somehow skated through undergrad, breezed through medical school, and then cake-walked through their 100+ hour weeks as residents for 7 years, and never learned to be competent doctors, not a one.

    I’ve never been sued. As you might guess, I’m a neurosurgeon. The fear of being sued is real, and affects much of what I do and how I practice. I once thought I was getting sued (turned out I was being called as a witness in a trial), and wow did that stop me in my tracks. I thought to myself “why would anyone volunteer to do this job? How can I go through this over and over during my career?” An annual risk of 20% translates into maybe half a dozen lawsuits over a neurosurgeon’s career…

    Perhaps when a family practice doc practices defensive medicine, he or she sends a patient here or there to a sub specialist for an extra opinion. When a surgeon practices defensive medicine, that means scans and tests that can easily cost hundreds or thousands of dollars. That’s what the studies looking at the cost of defensive medicine miss: they look at the wrong specialties and generalize.

    I think lawyer’s know this, but are happy to not think about it: the practice of medicine is not perfect. No human endeavor is. We’re always trying to make it more perfect, but bad things will happen, even when the doctor does everything “right.” Too many people believe that when something bad happens, it must be someone’s fault. Sometimes it is, and that’s where lawyers are essential. But to say that essentially 100% of a specialty lacks the competence to make it through their careers without half a dozen lawsuits, that’s just crazy.

    High risk specialties are high-risk because they deal with bad things that are ongoing, and often we’re doing our damnedest to make things less bad. In many cases, making things less bad is considered a huge success. But patients don’t often see it that way, and we often feel as though lawyers are actively working to embolden those attitudes.

    Like in any occupation, there are those who are good and those who are bad in neurosurgery, or in any medical specialty. Yet I see surgeons that I would go to in a heartbeat if it were my brain that needed fixing getting sued over and over, as if they were habitual offenders. That’s just crazy.

    • Anonymous

      You wrote, “But to say that essentially 100% of a specialty lacks the competence to make it through their careers without half a dozen lawsuits, that’s just crazy.”
      I agree. As I’ve written about before here, review of malpractice claims data shows that a disproportionate share of the payments are made on behalf of a small fraction of doctors. I’ve seen estimates suggesting that fully one-third of malpractice payments are made for 5% of doctors, and in my practice I’ve seen a number of serial offenders who simply should not be practicing medicine any more.
      You also wrote, “I think lawyer’s know this, but are happy to not think about it: the practice of medicine is not perfect. … Too many people believe that when something bad happens, it must be someone’s fault.”
      The law doesn’t demand perfection from doctors, nor that they ensure nothing bad happens, just that they meet the standard of care. Many states don’t even permit the filing of a malpractice suit without a qualified doctor certifying the possibility of malpractice, and no state permits a plaintiff to take a malpractice case to trial without a qualified expert testifying as to the malpractice that occurred.
      Thanks for the comment.