A new study published in the New England Journal of Medicine this week reports that one in 14 doctors faces a malpractice suit every year.
This results in almost every physician having to deal with a malpractice lawsuit — or more than one — during his or her career.
The study authors, led by Anupam B. Jena, of Harvard Medical School, say their study is the first look at malpractice and how common it is, with a large number of physicians, followed for a number of years, and, without the bias of having the physicians report their experience themselves.
The study also reported that, although many suits are filed, very few are successful. The aggrieved patient wins only 22 percent of the time. This rate of failure however, does not mean that physisican's reputations, finances, and their practices go unscathed.
The study’s findings are not a huge revelation to malpractice insurers, of course.
“The report doesn’t provide information that is surprising to those in the medical professional liability industry,” said Rob Francis, chief operating officer at The Doctors Company, Napa, Calif. “The frequency of claims does vary significantly by specialty, and the majority of claims are resolved in favor of the physician, pointing out the prevalence of frivolous claims. In our data, over 80 percent of claims are closed with no payment to plaintiffs.”
The physicians with the highest risk of being sued were the neurosurgeons, with an annual risk of 19.1 percent, followed by the thoracic-cardiovascular surgeons, with an annual risk only slightly less at 18.9 percent, followed by the general surgeons, with an annual risk of just less than 15.3 percent. The physicians with the lowest risk of being sued were the pediatricians, with an annual risk of 3.1 percent, followed, lastly, by the psychiatrists, with an annual risk of 2.6 percent.
Interestingly, physicians most likely to lose a malpractice case in any given year were the general surgeons, 4 percent of whom lost a case annually.
Overall, the study authors said, 75 percent of physicians practicing in a low-risk specialty will have been sued by the time they are age of 65 years, 19 percent will have made an indemnity payment. For those in the high risk specialties, 99 percent will have been sued by age 65, and 71 percent will have lost.
Obstetricians often pay the highest premiums for malpractice insurance of any specialty. According to figures from the federal government, from 2003, the average rate paid by an obstetrician/gynecologist was $64,000 a year, or more. That compared with $28,000 to $50,000 for a general surgeon and $6,000 to $11,000 for an internist. In Florida, where malpractice premium rates tend to be the highest, an obstetrician/gynecologist can pay over $100,000 a year — sometimes well over.
Malpractice Insurance 101
There are two different forms of malpractice insurance available to health care providers -"occurrence" and "claims-made."
The occurrence form has been used for several decades to provide medical malpractice insurance. The occurrence form covers incidents that happen during the policy period without regard to when the claims are reported. Occurrence coverage provides protection for each policy period indefinitely. Because of upheaval in the malpractice insurance market, occurrence coverage is becoming a rare commodity.
The claims-made form was introduced during the mid-1970s as an alternative form of coverage. Under a claims-made form, a medical incident must have happened and be reported to the insurance company while the policy is in force. Once the policy has been terminated, coverage no longer exists. If coverage is desired for claims reported after the policy has been terminated, then an Extended Reporting Endorsement (known as a "tail") must be purchased.
Malpractice Award Curbs
In recent years, as malpractice premiums have continued to rise, a number of states have enacted caps on malpractice awards. Twenty-seven states currently limit the amount that can be awarded for non-economic damages, usually to around $250,000, notably California and Texas.
Some research has indicated that having a cap really does not keep down malpractice premium rates, though it may help a state attract physicians. But, Howard Lamb, chairman of Medicus Insurance Co., Austin, Tex., said that, when just about every physician is likely to be sued, tort reform and awards caps make a huge difference.
He said that two-thirds of a professional indemnity insurers costs are related to claims, so that if awards come down and the number of suits filed drops, premium rates necessarily will follow. He said that in Texas, where tort reform was enacted in 2004, the number of cases filed have dropped by a half.
In recent years too, the physician community has come to realize that many malpractice suits arise not so much because a mistake or an act of negligence has occurred but because the mistake has not been acknowledged. When providers admit a mistake, often times they avoid a malpractice suit.
“In the study conclusion, Jena and colleagues wrote: “Our results may speak to why physicians consistently report concern over malpractice and the intense pressure to practice defensive medicine, despite evidence that the scope of defensive medicine is modest.”
