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A New Medical Malpractice Claims Study By Physician Specialty

By Marc Lanzkowsky, Esq. – Senior CoverMD Contributing Editor

Summary

In this article, Marc Lanzkowsky, Esq. looks at a recent study published in the The New England Journal of Medicine that examined the malpractice risk faced by doctors as it related to their specialty.

I always find studies about the state of malpractice in this county fascinating. Recently, The New England Journal of Medicine recently published a special article, Malpractice Risk According to Physician Specialty. While there have been studies about malpractice in the past this one takes a slightly different approach and therefore is worth exploring. With the practice of defensive medicine and malpractice rates contributing to the high cost of medicine, understanding the data around malpractice is needed if solutions are to be developed. This study provides a practical glimpse into the world of malpractice and how it applies to specific physician specialties.

Unlike other studies that focus on local results, or those that look to claims with payments, this new study looked at closed malpractice claims nationwide from 1991 to 2005. By looking at data from closed claims from a national malpractice insurer, the researchers were able to gather information about the ages, specialties, and location of claims, whether a payment was made or not. Data was gleaned from all 50 states and 24 distinct specialties were represented as has having a minimum of 200 claims. The study shed new light on how often claims are made regardless of whether a payment is made.

Having been in the malpractice and insurance business for 20 years I was not surprised by some of the findings.
This study specifically ...
"... 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."

 Pediatrics Led All Specialties in Loss Payments

There were some findings in this study that may seem surprising. For instance, specialties that were most likely to face indemnity claims were often not those with the highest average payments. For example, Neurosurgeons were the most likely to receive a claim, however their average loss payment was significantly less than that of Pediatrics which was the least likely to receive a claim. In fact pediatrics led all specialties by a dramatic amount in loss payments. This fact was likely due to a higher sympathy factor for children and the longer life span that may require higher compensation. Nonetheless, the findings were interesting.

The top 6 specialties that were most likely to have a claim brought against them included:
  • Neurosurgery
  • Thoracic-cardiovascular surgery
  • General Surgery
  • Orthopedic Surgery
  • Plastic Surgery
  • Gastroenterology
(Obstetrics and Gynecology was 7th on the list)

Conversely, the top 6 specialties that had the highest payments were:
  • Pediatrics
  • Pathology
  • Neurosurgery
  • Obstetrics & Gynecology
  • Internal Medicine
  • Pulmonary medicine
What seems unfortunately clear was that no matter what specialty, the likelihood of being named in a claim was relatively high. There was a clear discrepancy, however, among what are considered “low-risk” specialties where “36% were projected to face their first claim by the age of 45 years, as compared with 88% of physicians in high-risk specialties.” Surprisingly the numbers jump significantly by the age of 65 years, when 75% of physicians in low-risk specialties and 99% of those in high-risk specialties were projected to face a claim.

 The Risk of Being Involved in a Lawsuit is High

While the study points to the fact that many claims that are filed result in no payment to the claimants, the relative risk of being involved in a lawsuit is high. While medical malpractice insurance will cover you for the costs associated with trial and any possible payment, the intangible uninsurable costs such as time, stress, and reputational damage are hard to measure. It is certainly no respite that frivolous claims, where no medical error has taken place, are usually not compensated, as a prior article published in The New England Journal in 2006 pointed out (Claims, Errors, and Compensation Payments in Medical Malpractice Litigation). And, as the author of that study put it, regardless of fault "deciding negligence is a very expensive process.”

These findings were consistent with my experience that most of the physicians I represented never had claim payment made on their behalf. Of course the reasons why they were sued and how they were let out of the case varied. Regardless, the filing of a claim alone, even if a payment was not made, can have a detrimental affect on the physician. Unfortunately many attorneys follow a ”scorched earth” tactic of filing suit. In other words they sue everyone and sort out who was responsible during discovery.

It's important that these studies continue to help both physicians and non-physicians alike understand the state of malpractice in this country. Certainly there is enough anecdotal information out there. A little bit of facts may actually help to make things better.

About the Author

Marc Lanzkowsky, Esq. - CoverMD.com Senior Contributing Editor

Marc Lanzkowsky began his career as a Medical Malpractice Defense Attorney in New York, where he represented physicians and hospitals against claims or negligence.

Marc received a bachelor’s degree from New York University in 1988 and a Juris Doctorate from Pace University School of Law in 1991 and comes from a family of 9 physicians making the subject of Medical Malpractice near and dear to his heart.

Click here to read Marc's full bio



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