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.