Small number of docs account for large share of malpractice claims

(This story was updated with comment from the Physician Insurers Association of America on Thursday, Jan. 28, 2016.)

A relatively small number of doctors are responsible for a disproportionate percentage of paid malpractice claims, according to a study published Wednesday in the New England Journal of Medicine.

Doctors in certain specialties—including neurosurgery, orthopedic surgery, plastic surgery, obstetrician-gynecologists and general surgery—are also more likely to have more than one paid malpractice claim, according to the study.

“What we show is physicians who have multiple claims are an issue,” said lead author David Studdert, a professor of law and professor of medicine at Stanford University. The study suggests the concentration of these claims among certain types of physicians may be a bigger issue than previously thought, he said.

“We don't show it's possible to predict who those people are going to be, but we do take a step in that direction by identifying some distinctive characteristics of these practitioners,” Studdert said.

The study concludes that reliable prediction would help liability insurers and healthcare organizations "use the information constructively, by collaborating on interventions to address risks posed by claim-prone physicians (e.g. peer counseling, training, and supervision).”

About 1% of all doctors accounted for 32% of paid claims between 2005 and 2014, according to the study. Among physicians with paid claims, 84% had only one during that time; 16% had at least two paid claims; and 4% had at least three.

Physicians with two paid claims had almost twice the risk of having another one as compared with doctors with one previous paid claim. Doctors with three paid claims had three times the risk of recurrence as compared with those with one claim.

Physicians in certain specialties also had higher risks of multiple paid claims. Neurosurgeons, orthopedic surgeons, general surgeons, plastic surgeons and obstetrician-gynecologists had twice the risk of recurrence compared with internal medicine physicians.

Male doctors had a 38% higher risk of recurrence than female ones, and residents had a lower risk of recurrence than nonresidents.

The authors of the study analyzed claims paid against 54,099 physicians from 2005 through 2014 using data from the National Practitioner Data Bank.

But Brian Atchinson, president and CEO of Physician Insurers Association of America, which represents medical liability insurers, called the study's finding inconclusive in a statement Thursday. He said the National Practitioner Data Bank doesn't offer complete data on malpractice claims.

The study, he said, might also give the erroneous impression that doctors in certain specialties are more prone to repeated malpractice claims because they're providing negligent care.

““These physicians have chosen to take on some of the highest risks and the most complicated cases,” Atchinson said. “For this reason, they may be more vulnerable to suboptimal outcome, stemming from the very nature of their advanced level of practice.”

Others, however, praised the study for its breadth.

Dr. David Hyman, a professor of law and medicine at the University of Illinois who was not involved in the paper, called the study “first-rate.” He said the study uses broader and more recent data than any other that's been done as well as showing claims for specialties nationwide.

“People have long known there's higher risk in those specialties, but it's been harder to get a read on the extent,” Hyman said. He said the study puts experts closer to being able to identify malpractice prone physicians, though “we're still a ways” from that.

It's also well established that doctors who are the subjects of patient complaints are more likely to be sued than other doctors, said Charles Silver, a law professor at the University of Texas who also was not involved in the study. The new findings, he said, provide evidence that doctors who are sued are more likely to be sued again.

“What that tells you is closed malpractice claims are a good source of information that providers and their insurers could use to improve the quality of healthcare,” Silver said.

The study characterizes the medical malpractice system as “largely a reactive enterprise," noting that it's primary purpose is to be "a deterrent to substandard care—a function that evidence suggests it performs poorly.”

Silver, however, said medical liability insurers already do more than just cancel policies and raise rates to deter low quality care, such as by offering doctors processes to follow to ensure their care is high quality.

The study's authors acknowledged some limitations of their analysis, including that not all paid malpractice claims are reported to the National Practitioner Data Base because doctors' names are sometimes shielded through settlements made in the names of their institutions. Such shielding is most likely when doctors and their hospitals are covered by the same liability insurer, the delivery system is tightly integrated or doctors “exert substantial control,” according to the study.

Also, the study didn't take into account doctors' patient volumes, hours worked or patient case mix when evaluating their risk of facing paid malpractice claims. Nor did it include unpaid claims, which might still indicate problems in some situations.