Efforts to Reduce Med-Mal Litigation

Physicians and other health care providers continue to be worried about being sued, even in states that have enacted “tort reform.” These fears are not unrealistic. Even though a small percentage of all lawsuits being filed are medical malpractice actions, the vast majority of physicians in this country can still expect to be sued during their careers.

Surveying the Numbers

The Physician Insurers Association of America (PIAA) represents provider-owned medical malpractice insurance companies with data collection participation that represents about 25% of all medical malpractice claims in the U.S. Carroll, Aaron et. al., “The Impact of Defense Expenses in Medical Malpractice Claims,” The Graying of America: Challenges and Controversies, J Law, Medicine & Ethics, Vol. 40, Issue 1, Spring 2012. This subset of data paints a broader picture of what is happening across the country. Between 1985 and 2010 there were approximately 256,225 closed claims reported to the PIAA data-sharing project, which, if consistent with the larger claims population, would equate to some 1,024,900 medical malpractice claims nationwide. Id. At 137. If we average that out, it comes to over 40,000 claims filed a year.

Although there are other types of cases, for instance auto accidents, where the volume is much greater, the percentage of auto drivers being sued is much lower than the percentage of physicians being sued. The Center for State Courts reported that, in 2008, fewer than 2% of all incoming civil cases and less than 8% of incoming tort cases were medical malpractice claims. Lee, Cynthia et. al., “Medical Malpractice Litigation in State Courts,” National Center for State Courts, Court Statistics Project, Vol. 18, Number 1, April 2011.

There were 799,509 active physicians in the United States in 2010. 2011 State Physician Workforce Data Book, American Association of Medical Colleges 2011. By the age of 65, 75% of physicians in low-risk specialties and 99% of physicians in high-risk specialties will have been subjected to a lawsuit. Each year during a study period that ran from 1991-2005, 7.4% of all physicians were the subjects of a malpractice claim, with 1.6% having a claim leading to a payment (i.e., 78% of all claims did not result in payments to claimants). Jena, Anupam et al., Risk According to Specialty, N Engl J Med, 365. 7 (Aug. 18, 2011): 629-636.

Claims Frequency

In an American Medical Association review of claims frequency during 2007-2008, 5% of physicians had claims filed against them in that time frame. Kane, Carol, Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians, “Policy Research Perspectives,” American Medical Association, AMA Economic and Health Policy Research, August 2010. That same review found that, over the length of a career, 61% of physicians age 55 and older had been sued, with an average of 1.6 claims per physician. That snapshot also revealed large differences across physician specialties. Claim rates varied from 22.2 % among psychiatrists to 69.2 % among surgeons and obstetricians/gynecologists. In fact, about half of OB/GYNs under the age of 40 had already been sued. Ninety percent of surgeons age 55 and older had been sued.

The available data makes it clear that while a small percentage of tort lawsuits are medical malpractice cases, the consequences for a physician are large in any given year and over the course of a career.

What Do the Statistics Mean?

There are significant consequences of these medical malpractice lawsuits for physicians, in terms of money, reputation, stress and burnout. In a recent study of surgeons, the authors found that, “In addition to the considerable time away from practice associated with lawsuits' the tort process is inherently accusatory and has profound effects on quality of life. Both the frequency of malpractice lawsuits and the adverse associations with surgeons' mental quality of life, burnout, career satisfaction, and suicidal ideation emphasize another occupational risk factor that can adversely impact surgeons' personal health.” Balch Charles et. al., Personal Consequences of Malpractice Lawsuits on American Surgeons, J Amer Coll Surgeons (JACA) 20'13: 657-667.

At the same time, the high number of malpractice lawsuits is not well correlated with medical mistakes. As evidence of this, we can look to a Harvard Medical Practice Study published in the 1980s, which found that less than 2% of medical mistakes resulted in a lawsuit. Localio, Russell et al., Relation Between Malpractice Claims and Adverse Events Due to Negligence ' Results of the Harvard Medical Practice Study III, N Engl J Med, July 25, 1991, 325: 245-251. More recently another study found that 37% of malpractice claims did not involve medical error. Studdert, David et. al., Claims, Errors and Compensation Payments in Medical Malpractice Litigation, N Engl J Med, May 11, 2006, Vol.354, Iss. 19, pg. 2021. If there are to be fewer inappropriate lawsuits ' and therefore fewer physicians subjected to them ' then tort reform must address the claims that do not involve medical mistakes.

Next month, we will look at reforms and trends that are decreasing the likelihood of a physician being sued ' and at others that are not.

Linda S. Crawford, JD, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has consulted with defendants and witnesses on research based effectiveness at deposition and trial since 1985.

Physicians and other health care providers continue to be worried about being sued, even in states that have enacted “tort reform.” These fears are not unrealistic. Even though a small percentage of all lawsuits being filed are medical malpractice actions, the vast majority of physicians in this country can still expect to be sued during their careers.

Surveying the Numbers

The Physician Insurers Association of America (PIAA) represents provider-owned medical malpractice insurance companies with data collection participation that represents about 25% of all medical malpractice claims in the U.S. Carroll, Aaron et. al., “The Impact of Defense Expenses in Medical Malpractice Claims,” The Graying of America: Challenges and Controversies, J Law, Medicine & Ethics, Vol. 40, Issue 1, Spring 2012. This subset of data paints a broader picture of what is happening across the country. Between 1985 and 2010 there were approximately 256,225 closed claims reported to the PIAA data-sharing project, which, if consistent with the larger claims population, would equate to some 1,024,900 medical malpractice claims nationwide. Id. At 137. If we average that out, it comes to over 40,000 claims filed a year.

Although there are other types of cases, for instance auto accidents, where the volume is much greater, the percentage of auto drivers being sued is much lower than the percentage of physicians being sued. The Center for State Courts reported that, in 2008, fewer than 2% of all incoming civil cases and less than 8% of incoming tort cases were medical malpractice claims. Lee, Cynthia et. al., “Medical Malpractice Litigation in State Courts,” National Center for State Courts, Court Statistics Project, Vol. 18, Number 1, April 2011.

There were 799,509 active physicians in the United States in 2010. 2011 State Physician Workforce Data Book, American Association of Medical Colleges 2011. By the age of 65, 75% of physicians in low-risk specialties and 99% of physicians in high-risk specialties will have been subjected to a lawsuit. Each year during a study period that ran from 1991-2005, 7.4% of all physicians were the subjects of a malpractice claim, with 1.6% having a claim leading to a payment (i.e., 78% of all claims did not result in payments to claimants). Jena, Anupam et al., Risk According to Specialty, N Engl J Med, 365. 7 (Aug. 18, 2011): 629-636.

Claims Frequency

In an American Medical Association review of claims frequency during 2007-2008, 5% of physicians had claims filed against them in that time frame. Kane, Carol, Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians, “Policy Research Perspectives,” American Medical Association, AMA Economic and Health Policy Research, August 2010. That same review found that, over the length of a career, 61% of physicians age 55 and older had been sued, with an average of 1.6 claims per physician. That snapshot also revealed large differences across physician specialties. Claim rates varied from 22.2 % among psychiatrists to 69.2 % among surgeons and obstetricians/gynecologists. In fact, about half of OB/GYNs under the age of 40 had already been sued. Ninety percent of surgeons age 55 and older had been sued.

The available data makes it clear that while a small percentage of tort lawsuits are medical malpractice cases, the consequences for a physician are large in any given year and over the course of a career.

What Do the Statistics Mean?

There are significant consequences of these medical malpractice lawsuits for physicians, in terms of money, reputation, stress and burnout. In a recent study of surgeons, the authors found that, “In addition to the considerable time away from practice associated with lawsuits' the tort process is inherently accusatory and has profound effects on quality of life. Both the frequency of malpractice lawsuits and the adverse associations with surgeons' mental quality of life, burnout, career satisfaction, and suicidal ideation emphasize another occupational risk factor that can adversely impact surgeons' personal health.” Balch Charles et. al., Personal Consequences of Malpractice Lawsuits on American Surgeons, J Amer Coll Surgeons (JACA) 20'13: 657-667.

At the same time, the high number of malpractice lawsuits is not well correlated with medical mistakes. As evidence of this, we can look to a Harvard Medical Practice Study published in the 1980s, which found that less than 2% of medical mistakes resulted in a lawsuit. Localio, Russell et al., Relation Between Malpractice Claims and Adverse Events Due to Negligence ' Results of the Harvard Medical Practice Study III, N Engl J Med, July 25, 1991, 325: 245-251. More recently another study found that 37% of malpractice claims did not involve medical error. Studdert, David et. al., Claims, Errors and Compensation Payments in Medical Malpractice Litigation, N Engl J Med, May 11, 2006, Vol.354, Iss. 19, pg. 2021. If there are to be fewer inappropriate lawsuits ' and therefore fewer physicians subjected to them ' then tort reform must address the claims that do not involve medical mistakes.

Next month, we will look at reforms and trends that are decreasing the likelihood of a physician being sued ' and at others that are not.

Linda S. Crawford, JD, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has consulted with defendants and witnesses on research based effectiveness at deposition and trial since 1985.