The Doctors Company’s Dubious Medical Malpractice Statistics

This morning, MedPage Today — which should know better — began their “Morning Break” with this description and link:

An analysis of closed claim data from The Doctors Company suggests that physicians spend about 10% of their professional life dealing with malpractice claims, but most of those claims are closed with no money paid to the plaintiff.

Goodness! That sounds incredible. Turns out, it is incredible. In fact, it’s false.

The linked post by “The Doctors Company” at The Doctor Weighs In says:

The average physician spends over 10 percent of his or her career consumed in defense of an open malpractice claim. For the average neurosurgeon, that number is 25%—that’s a quarter of a career dealing with the intense emotional stress of defending your reputation and livelihood.

And the majority of those claims close with no payment to the plaintiff. That means the average U.S. physician in every specialty spends a significant portion of his or her career in court defending malpractice claims, but the overwhelming majority of those claims are found to be at best fruitless, and at worst frivolous.

These numbers come from a RAND Corporation objective analysis of the claims database of The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. According to Richard E. Anderson, MD, FACP, chairman and CEO of The Doctors Company, these numbers show that our medical malpractice litigation system is broken—and must be fixed.

The only support given for any of these assertions is this YouTube video, where Dr. Anderson makes the same claims.

But there’s a problem: the RAND Corporation’s “objective analysis” never said anything like that.

Go read the study yourself in the New England Journal of Medicine. The researchers did not say “The average physician spends over 10 percent of his or her career consumed in defense of an open malpractice claim.” They didn’t even attempt to study what percent of a doctor’s career is “consumed in defense” of malpractice claims.

Instead, RAND looked at “the proportion of physicians who had malpractice claims in a year, the proportion of claims leading to an indemnity payment (compensation paid to a plaintiff), and the size of indemnity payments.” They found “[e]ach year during the study period, 7.4% of all physicians had a malpractice claim… The proportion of physicians facing a claim each year ranged from 19.1% in neurosurgery, 18.9% in thoracic–cardiovascular surgery, and 15.3% in general surgery to 5.2% in family medicine, 3.1% in pediatrics, and 2.6% in psychiatry.”

It seems The Doctors Company took those numbers, which reflect the percent of physicians who had malpractice claims in a year, puffed up the numbers a little bit (making “7.4 percent” into “10 percent” and “19.1 percent” into “25 percent”), and then claimed it was a measure of “percent of his or her career consumed in defense of an open malpractice claim.”

Which is untrue. The Doctors Company simply misrepresented the RAND study, claiming that, when a physician has a claim opened against them, that “consumes” their life for a year, as if it was impossible to practice medicine when there’s an open claim.

Notably, as the RAND researchers themselves noted, their numbers were much higher than the numbers actually reported by doctors themselves: “A recent American Medical Association (AMA) survey of physicians showed that 5% of respondents had faced a malpractice claim during the previous year,” compared to the 7.4% found by RAND, a whopping 48% increase. The study of the AMA data is available here. As that study concluded, “A number of key findings emerge from the data. First, in any single year, being sued is a rare event. Only 5 percent of physicians had claims filed against them in that time frame.” For all we know, the insurer that RAND profiled happened to have a really aggressive definition of “claim” which included every time a doctor’s office got a phone call from a disgruntled patient.

Since we’re talking about empirical data and studies, now’s a good time to reference the Center for Justice & Democracy’s new Briefing Book, Tort Litigation – By The Numbers. It includes a nice reference section on the prevalence of “frivolous” medical malpractice lawsuits:

See, e.g., Theodore Eisenberg, “The Empirical Effects of Tort Reform,” Research Handbook on the Economics of Torts, Forthcoming; Cornell Legal Studies Research Paper No. 12-26, April 1, 2012 (“Evidence from medical malpractice studies finds no robust evidence that frivolous suits are common…”); David A. Hyman and Charles Silver, “Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid,” 59 Vand. L. Rev. 1085 (May 2006) (citing Chris Guthrie, “Framing Frivolous Litigation: A Psychological Theory,” 67 U. Chi. L. Rev. 163, 163 n.2 (2000) (“citing sources recognizing dearth of hard evidence showing frivolous lawsuits are a serious problem”). See also, Testimony of Duke Law School Professor Neil Vidmar before the U.S. Senate Committee on Health, Education, Labor and Pensions, Hearing on “Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 (“There is a widespread belief that injured patients sue at the drop of a hat … In fact, the opposite appears to be true.”)

Fact is, frivolous lawsuits were rarely ever a problem, and the whole point of “tort reform” was to make it even harder for injured patients to obtain fair compensation. And thus far it’s “working” to achieve that goal: as the Pennsylvania Supreme Court reported, medical malpractice case filings are at their lowest level in 14 years. Meanwhile, medical malpractice itself remains commonplace. It’s believed by many researchers to be the third leading cause of death in America.

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