The risk of medical litigation is a constant feature throughout every practicing doctor’s professional life. The chief value of litigation, according to the legal profession, is the prevention of harm through its role as deterrent against substandard clinical care. The evidence in support of this proposition is debatable. Lawsuits are a particular worry for those in high volume, and in craft specialties. Many feel that there is a significant element of chance as to whether one gets sued or not during one’s career. Litigation is frequently perceived as being about being in the wrong place at the wrong time. If only one hadn’t swopped call for that weekend, or undertaken that additional outpatient clinic one would not have ended up in the courts. The conventional wisdom is that future medico-legal events cannot be predicted with accepted levels of accuracy. Most would accept that greater clinical exposure increases the risk of a lawsuit. If one follows this line of thought, busy doctors are more likely to be sued. A recent study by Studdert et al1 suggests that things are not this simplistic, and that there are patterns and characteristics among physicians that need to be explored.
The authors analysed 66,426 claims paid against 54,099 physicians over the 10 year period 2005-2014. 84% had just one claim, 16% had 2 claims, and 4% had at least 3 claims. When the analysis was performed with all 915,564 physicians in the US as a denominator, the patterns was very concentrated. Only 6% of doctors had a paid claim, and 1% of physicians (those with ≥2 claims) accounted for 32% of all claims. More than half of the claims were accounted for by 4 specialties, internal medicine, obstetrics and gynaecology, general surgery, and general practice. Male physicians had a 38% higher risk of recurrence claim compared with their female counterparts. The risk among physicians under 35 years was one third the risk of their older colleagues. This may partly be explained by the larger, more complex caseloads and higher levels of responsibility carried by older doctors.
A physician’ risk of future litigation increased with the number of previous claims. Doctors who had 2 previous paid claims had twice the risk of having another one. The risk of a further claim was highest in the year after the previous claim, and reduced after that. The specialty of the doctor was an important risk factor. Compared with internal medicine, the surgical specialties and obstetrics and gynaecology, had twice the risk level. The lowest risk was encountered with psychiatry and paediatrics. For example, the hazard ratio for neurosurgery was 2.32 compared with 0.60 for psychiatry.
In a previous study Studdert and Gwande2 have described the characteristics of the plaintiffs. The median age was 38 years and 60% were female. Eighty per cent of the claims related to significant injury or death. One third of the claims were not attributable to error. The cost of defending these frivolous claims was substantial. A frivolous claim is one that has no rational argument based on the evidence or law in support of the claim. The average time between injury and resolution was 5 years, and 30% of claims took 6 years or more to resolve. These long periods of uncertainty are stressful for both the litigant and the defendant. Agreement is particularly difficult to obtain among claims involving missed or delayed diagnoses. Furthermore the protracted process affects the health service by taking one or more doctors away from patient care. It is an expensive system. In the US the combination of the defense costs and the contingency fees charged by plaintiff’s attorneys amounted to 54% of the compensation paid to the plaintiff.
The data provided by Studdert’s new study confirms those reported by Gallagher and Levinson3 in their review. They pointed out that 3% of Australian physicians accounted for 49% of patient complaints4. They suggested that the medical profession does not take communication issues as seriously as other clinical activities. This is remiss because it is now appreciated that poor communication is frequently the starting point for a legal action. Institutions should have mechanisms in place to support physicians who have had a number of complaints leveled against them. The individual may be unaware of how his behaviour is being negatively received by his patients.
The claim concentration in Studdert’s study is higher than that published in previous studies. The approach taken with claim-prone physicians is discussed. The current problem is that educational programmes in this area are general rather than specific. Insurers tend to approach the problem by raising premiums or terminating cover. Something similar has been the experience in Ireland over the last 15 years. The response to the rapidly rising litigation rates was to increase premiums to levels that were unsustainable in some specialties. The root cause of the public’s increased tendency to seek legal redress when dissatisfied with medical care, has not been sufficiently explored or addressed.
The authors suggest that if certain claim-prone patterns among physicians can be identified, it should be possible to reduce future risk through further training and supervision. One reservation is that the current debate in concentrated on an individual physician or a group of physicians. It would be helpful to widen the discussion to include institutions that have been subject to excessive claims and complaints. This approach would lead to an examination of administration and clinical governance. It needs to be constantly stated and emphasised that most medical care breakdowns are caused by system failure rather than isolated individual error.
1. Studdert DM, Bismark MM, Mello MM, Harnam Singh, Spittal MJ. Prevalence and characteristics of physicians prone to malpractice claims. N Engl J Med 2016;374:354-62
2. Studdert DM, Mello MM, Gawande A, Gandi Tejal K, Kachalia A, Yoon C, Puopolo AL, Brennan TA. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354:2024-33.
3. Gallagher TH, Levinson W. Physicians with multiple patient complaints: ending our silence. Quality and Safety in Health Care. 2013;22:521-4
4. Bismark MM, Spittal M, Gurrin LC, Ward M, Studdert DM. Identification of doctors at risk of recurrent complaints: a national study of healthcare complaints in Australia. Quality and safety in Health Care. 2013