What's your malpractice risk? Depends on your specialty

Malpractice lawsuits are a worry for every physician. But what are the chances that a typical internist will ever have to face a jury? And how likely is that jury to find that the doctor's care was negligent?

A group of researchers recently addressed these questions, and a few related ones, using the claims database of a major malpractice insurer. Their findings were published as a research letter in Archives of Internal Medicine on May 12. Lead author Anupam B. Jena, MD, PhD, an assistant professor of health care policy at Harvard Medical School and hospitalist at Massachusetts General Hospital (both in Boston) and an ACP Associate Member, talked to ACP Internist about the study and its implications for physicians and policymakers.

Q: Art 1 What led you to study this topic?

A: Surprisingly little has been published in the academic literature on the malpractice risks faced by physicians in particular specialties. Obstetricians, neurosurgeons and emergency room physicians are often considered to be at highest risk, yet little is known about how other specialties fare. In August 2011, we published an article in the New England Journal of Medicine which examined rates of lawsuits, settlements and size of payouts according to physician specialty.

Q: What additional information did you gain from doing the NEJM study?

A: We calculated the annual rate of malpractice for each of 25 specialties. We found that in high-risk specialties, by the age of 65, nearly 100% of physicians faced a malpractice claim. Approximately 75% of these physicians paid out a malpractice claim—meaning they either settled the claim or lost in trial. Even in “low-risk” specialties, among which internists would fall, the lifetime risk of facing a malpractice suit by the age of 65 was between 60% and 70%. One-third of physicians in low-risk specialties were predicted to make a malpractice payment to a patient by the age of 65.

Q: What did you find in your research letter on this topic?

A: That study focused on malpractice claims that resulted in actual litigation against a physician—meaning that the case was heard in front of a judge. We limited our analysis of claims to those with at least some defense cost, typically a legal cost. We found that approximately 50% of all claims with defense costs underwent litigation. That percentage ranged across specialties, as high as 63% for obstetricians and gynecologists and as low as 47% among anesthesiologists.

The next question we tackled was: Among those claims that underwent litigation, what was the outcome? Again, approximately 50% of litigated claims were dismissed by the court. Although those claims were dismissed, however, they still took a substantial time to resolve, almost 20 months on average.

Q: What about the 50% of cases that weren't dismissed?

A: If a judge does not dismiss a case, the case could be determined by a jury or, in most cases, resolved before jury verdict. Across all specialties, 33% of cases were resolved before a verdict. This was probably because an adverse event occurred to a patient and the physician, insurer and lawyers determined that defending the case further was not worth it. Those claims also took a long time to be resolved, nearly 28 months.

Q: What happens with the cases that aren't dismissed or settled and go to a jury?

A: The likelihood of getting to the jury verdict stage is actually quite low. For instance, about 7% of cases underwent a jury verdict. Among those cases, the jury verdict went in favor of the physician 80% of the time.

Q: What's the significance of that finding?

A: One might reasonably ask: “Why don't all physicians and their lawyers wait until the jury stage?” There are a few reasons why that logic is not correct. First, it takes a long time to get there, almost four years on average. Second, those cases which we observed going to the jury verdict stage were presumably ones in which the insurer felt that there was a high probability of winning. For those cases that are resolved before a jury verdict, there is probably a reasonable chance that they would lose if they went any further.

Q: What lessons can physicians take from your findings?

A: Our hope is that physicians in each specialty can look at our results to gauge the malpractice risks they can expect to face in their careers. We also want physicians and policymakers to recognize the length of time it takes for malpractice claims to be resolved. Even among claims that are dismissed, it takes nearly 20 months to resolve. These are claims in which malpractice most likely did not occur. The length of time it takes to resolve claims probably weighs on the minds of physicians quite a bit. In unpublished data, we've found that in some specialties such as neurosurgery, the average physician may spend almost 30% of their career with an active malpractice case looming.

Q: What lessons do you hope policymakers will take from your study?

A: First, I hope our studies help policymakers recognize why physicians continually voice, election after election, that there should be malpractice reform. It is naturally difficult for policymakers to fully appreciate unless they know the statistics that physicians face. Policymakers should also be aware of the time to takes to resolve malpractice claims, as this is a major inefficiency of the malpractice system. We should be actively thinking about how to reduce this length, ensuring that patients who are harmed by malpractice are rewarded fairly and in a timely way. There is little reason that claims that are ultimately dismissed should take 20 months and upwards of $25,000 per claim to resolve.

In fact, there are policies that are already starting to be implemented to address some of these issues. The goal of our malpractice system should be to identify instances in which malpractice occurred as soon as possible and make patient compensation as fair and expeditious as possible. This is good policy for both patients and physicians.