Nurse Fixes IV
25 July 2017

A Small Group Of Doctors Is Responsible For One-Third Of All Malpractice Settlements

Public health researchers have found that a whopping number of malpractice claims are paid out by a select group of doctors. While almost every physician will be sued for malpractice at some point during their career, Stanford researchers have found that almost one-third of all malpractice settlements involve just 1% of the nation’s doctors.

The Other 1%: Are “Claim-Prone” Physicians Just Bad Doctors?

In their article, published in January 2016 by the New England Journal of Medicine, a team from California explained that “claim-prone” physicians tend to be older men practicing in more-generalized fields of medicine: general surgery, family medicine, internal medicine and obstetrics. Are these just bad doctors?

Surgical Team

Serious health policy analysts are usually hesitant to make that connection. Instead of suggesting that doctors who get sued a lot should probably have their licenses revoked, most doctors who study this issue locate the problem squarely in the legal industry. It’s a problem caused by patients and attorneys, not medical care.

On this point, the Stanford study is refreshing. While the study’s authors refer to their subjects as “claim-prone,” they also admit that predicting which doctors will be more “claim-prone” could go a long way to “improv[ing] care.” Doctors, in the study’s language, “attract claims,” rather than committing medical errors. But it’s telling that the authors describe their results as a tool to “improve [healthcare] quality,” not just save money for insurance companies and physicians.

Does Malpractice Litigation Even Reflect True Medical Errors?

So what are these “claim-prone” physicians up to? “Claim-prone” may be an understatement. “Compared to physicians with only one previous claim,” study lead author David Studdert, “a physician who has had three previous claims is three times more likely to have another one.” In short, the more medical errors a physician racks up, the more likely they will be to commit another in the future. At least, that’s one interpretation of the data.

We can’t assume from the outset that medical malpractice litigation accurately tracks the actual incidence of medical errors. Some physicians settle lawsuits even when they have strong defense arguments, simply to cut down on their legal fees or avoid the large awards usually handed down by juries. Undoubtedly, some good doctors have gotten a bad wrap, racking up a history of malpractice settlements even though their practices are basically sound. This is reality, after all. Almost anything conceivable has probably happened at least once.

“More Likely To Involve Substandard Care”

But I’d bet that the proportion of exceptional physicians with lengthy infraction records is pretty low. More likely, the 1% of doctors responsible for 32% of all malpractice payouts are actually doing something wrong. Another telling (and probably even more shocking) finding from the Stanford article shows that 94% of physicians never paid out any medical malpractice settlements during the 10-year study period. That means the over 66,000 malpractice claims included in the project were linked to just 6% of the doctors surveyed.

Let’s repeat that. 6% of 54,000 physicians were responsible for every medical malpractice settlement or jury verdict. That’s kind of insane. It’s also good evidence that these statistics actually help us identify bad doctors. If patients were really guilty of what conservatives like to call “legal abuse” (running around with weak cases and extorting financial settlements from innocent physicians), would you expect all that abuse to fall on the shoulders of only 3,240 doctors? Why would the legal burden concentrate like that?

Another hint lies in the fact that the Stanford researchers only looked at paid-out malpractice claims, ones that resulted in actual compensation. Doctors who won their cases outright and, assumedly, had not committed medical errors, were already filtered out. Truly exceptional physicians were probably left out of the study’s design as a result. This was a point of emphasis for the researchers, who wrote, “although payment does not necessarily indicate that a claim has merit, paid claims are much more likely than unpaid claims to involve substandard care.”

Filtering Out Meritless Malpractice Claims

We should also note that many of these claims proceeded in states that have jumped on the “tort reform” bandwagon, passing laws that lower the reward for filing suit or make filing a suit harder.

Actually pursuing a medical malpractice lawsuit is hard – and getting harder every day. We should assume that these difficulties (which act to discourage patients from filing so-called “frivolous” suits) are reflected in the study’s design, at least to a point. Many of the claims included in the study probably went through the arduous process of vetting imposed by “medical malpractice screening panels,” committees of independent legal and medical professionals tasked with separating frivolous lawsuits from ones that seem to involve true medical errors.

Many less-serious lawsuits never got off the ground due to state-established damages caps, which lower the amount of money plaintiffs can win. These are strong disincentives, preventing even patients with meritorious claims from pursuing them in court. Faced with these massive hurdles, it’s safe to assume that, in many states, only the most worthy medical malpractice lawsuits are able to push through the doors of a court house.

Who Pays Out Multiple Medical Negligence Settlements? Older Men.

Older doctors are way more likely to pay malpractice settlements than younger ones. That makes sense, of course. Older physicians have certainly gained more clinical experience, but it would be odd if they were also sharper than their younger peers. Older doctors, for that matter, are more liable to be married to outmoded treatment techniques.

On balance, patients are better-off getting treatment from doctors in their 40s than doctors in their 60s. “Clinical skills […] lag behind over time,” says Dr. Anupam Jena, a healthcare policy researcher at Harvard Medical School.

In her own research, covered here by the Telegraph, Jena has found that patients treated by older doctors are more likely to die within 30 days than people treated by younger ones. Notably, Jena attempts to explain this troubling result by writing, “older physicians might have decreased clinical knowledge [and] adhere less to standards of appropriate.” Could the trend picked up on in the Stanford malpractice study, that older doctors are more likely to pay out multiple settlements, be reflecting the risks noticed by Dr. Jena?

Are Women Better Doctors?

Offending physicians are overwhelmingly male. This also makes sense. Around 64% of the nation’s doctors are men, according to statistics hosted by the Kaiser Family Foundation. But there’s also limited evidence that patients who are treated by male doctors are more likely to experience adverse events than those treated by women.

Female Doctor Inspects X-Ray

Take a look at this recent study published in the Journal of the American Medical Association, which compared the rates of death and hospital readmission in patients treated by male and female physicians.

Women doctors came out on top. While the margins are thin, patients treated by female doctors were 0.43% less likely to die and 0.55% less likely to be readmitted to the hospital after their discharge. Those are small percentages, but seen in a broader context, the difference turns out to be huge. Ashish Jha, a professor at Harvard’s School of Public Health, explained it like this in an interview with the Washington Post:

“If we had a treatment that lowered mortality by 0.4 percentage points or half a percentage point, that is a treatment we would use widely. We would think of that as a clinically important treatment we want to use for our patients.”

As an extremely-important aside, a 0.4% reduction in the rate of hospital-related mortality would represent 32,000 lives every year. Does that mean we can save 32,000 lives per year just by increasing the number of female doctors? Not so fast. Although years of research has shown that women and men, on average, appear to practice medicine differently, women aren’t necessarily better doctors than men. It’s possible, for example, that medical facilities that hire more women also have better safety procedures in place. A host of other factors could be in play.

It’s Not Just “Legal Abuse”

The point, for our purposes, is that this recent study linked a difference in the sex of doctors to a difference in the rate of adverse medical events. Patients treated by men tended to experience more complications than patients treated by women. Now assume that’s true. Wouldn’t we expect that difference to show up in our medical malpractice statistics, at least insofar as we believe that malpractice claims accurately reflect the rate of severe medical complications?

Yes, we would, and, true to form, we find this trend reflected in medical malpractice payouts. Around 82% of the worst offending doctors are male, despite representing only 64% of the physician population. Women are under-represented. None of this is to say that male doctors are more likely to commit medical errors, but it could indicate that the Stanford study is picking up on something real, actual trends in the practice of medicine, rather than supposedly-rampant “legal abuse.”

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