Medical malpractice crisis?

Last week the American Medical Association released its most recent study of medical malpractice lawsuits. The study consisted of a survey performed on a sample of 5,825 full time, private-practice physicians during 2007 to 2008.  The sample was believed to be representative of all medical specialties, and although the AMA designed the study primarily to gather information for Medicare reimbursement rates, the survey also collected information about medical malpractice suits that these physicians had experienced during their careers and over the preceding year.

J. James Rohack, M. D., immediate past president of the AMA, is raising a hullabaloo about this study:

Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can influence what specialty of medicine physicians practice, where they practice and when they retire….This litigious climate hurts patients’ access to physician care at a time when the nation is working to reduce unnecessary healthcare costs.

The AMA survey did not even address most of the conclusions Dr. Rohack drew from it.   The AMA survey cited to a 2009 study from the Physician Insurers Association of America that showed that more than 30% of all medical malpractice claims result in a payment to the patient that averaged $200,000 for settlements and $375,000 for verdicts at trial.    I guess Dr. Rohack considers the PIAA report to be evidence that the “vast majority of claims” are “meritless.”  I have news for Dr. Rohack: nobody voluntarily pays $200,000 to settle a meritless claim.   Yes, I’ve heard of a runaway jury that gave an excessive amount of money on a claim, but the claim had merit; I’ve never heard of a jury that  awarded a large sum on a meritless claim.  In fact, judges are so overloaded with their criminal dockets that they are inclined to throw civil cases out that seem the least bit questionable, and juries rule in favor of physicians 90% of the time that a malpractice case goes to trial.

The AMA survey did not even pretend to address the merits of malpractice claims that ended favorably to doctors.  Indeed, no one who has dispassionately looked at the results of academic studies of this question has ever come to the conclusion that the “vast majority” of malpractice lawsuits are meritless.  The best known study of the merits of malpractice claims appeared in the New England Journal of Medicine in 2006.  In that study, about 3% of claims involved uninjured patients.  These claims were plainly frivolous; probably brought by inexperienced lawyers but also likely were quickly thrown out of court.  The striking thing to me about the NEJM study, however, is that the author physicians who reviewed the claims, in their opinion, believed that 27% of the patients who had been victims of medical malpractice never received a dime’s worth of compensation.  To be fair, the same percentage of compensated claims involved no error; these patients had injuries, to be sure, but the defendant physicians or their insurers thought it was prudent to settle. A different academic study cited by the AMA survey concluded that less than 15% of negligently treated patients ever filed a malpractice claim.

We now know what the AMA survey did not cover, e.g., outcome of the claims, such as whether they were dropped, settled or tried, or whether they resulted in indemnity payments to the patient, but the survey did make some interesting findings.  Only 5% of the surveyed physicians had claims in the past year, and some undetermined portion of those claims were not actual lawsuits, but merely demands upon the physician’s insurance carrier.  Not surprisingly, 61% of physicians over 55, i.e., those who had been in practice approximately 25 years or longer, had an average of 1.6 claims during the course of their careers.  Although the author of the AMA survey noticed that solo practitioners were sued more often than doctors who practice in groups, more surgeons and obstetrician/gynecologists tended to practice as solos and these specialists had high claims rates.  In fact, the author presented only raw statistics without any mathematical analysis.  In other words, it is not possible from the AMA report to conclude that the survey even proved that particular specialties were statistically more likely than others to be sued, but  in all fairness, the author never drew any such conclusions.

My conclusion from the AMA study is that a fairly small percentage of doctors are sued in a given year and that even over a life time of practice a lawsuit is not inevitable.  I practiced medicine for nearly 40 years before I retired and I was never sued.  Where is the medical malpractice crisis I keep hearing about?

Glenn L. Goodhart, M.D., J.D.    

6065 Roswell Rd. Northside Tower
Suite 410
Sandy Springs, GA 30328

Phone: (404) 255-3282

Toll Free: 866-959-2148


About Public Protection Lawyer

lawyer and physician
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2 Responses to Medical malpractice crisis?

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