Fewer Malpractice Cases Per National Practioner Data Bank

DM Studdert, MA Hall. NEJM 2022; 387: 1533-1537. Medical Malpractice Law — Doctrine and Dynamic

This article reviews the topic of malpractice and the hurdles for plaintiffs to establish liability. Some of the interesting points:

  • “Patients lose about 80% of medical malpractice trials.3 However, fewer than 1 in 20 claims end in courtroom verdicts; about one third are settled out of court with a payment to the patient, and the remainder are dropped or dismissed.3
  • “NPDB data reveal a remarkable phenomenon: the number of paid claims against physicians has decreased by 75% in the past 20 years.” The potential reasons include tort reform, greater openness about medical errors may have reduced patients’ inclination to sue, better medical care (no evidence of this), and incomplete NPDB data. With regard to incomplete data, this can occur with “corporate shielding” in which institutions assume liability and payment responsibility in claims against physicians, thus averting reporting requirements).

In the graph, “payments have been adjusted to 2021 dollars using the consumer price index for all urban consumers (https://data.bls.gov/PDQWeb/cu. opens in new tab).”

Related blog post: “Physician-Patient Relationship is Not Necessary to Sue Docs for Malpractice”

Less Litigation: Better Communication, Not More Testing

A recent NY Times articles sums up articles over more than two decades which show that better communication, rather than more testing, reduce malpractice lawsuits.

To Be Sued Less, Doctors Should Consider Talking to Patients More

An excerpt:

As far back as 1989, a study of obstetricians in Florida found that about 6 percent of obstetricians accounted for more than 70 percent of all malpractice-related expenses over a five-year period… Doctors who are sued are different in some way from those who aren’t…Some doctors were more likely to be sued, regardless of whether the cases against them were eventually found to have merit…

Doctors sued most often were complained about by patients twice as much as those who were not, and poor communication was the most common complaint…

At the University of Michigan about 15 years ago, a program was begun to improve communication around medical errors. When errors occurred, the program encouraged physicians to tell patients about them, how they happened, and what would be done to make them less likely to occur in the future. Doctors were also encouraged to apologize, and offer compensation for harm if it occurred.

study of the program published in 2010 found that in the years after it began claims dropped 36 percent, and lawsuits dropped 65 percent. The monthly cost of total liability and patient compensation dropped 59 percent, and legal costs dropped by 61 percent.

later study, published last year, looked at how the program affected gastroenterology claims and costs. It found that despite a 72 percent increase in clinical activity, the rate of claims per patient encounters dropped 58 percent…The total cost to the health care system of malpractice in gastroenterology decreased by 64 percent.

Related blog posts:

From Hammock

From Hammock

Badmouthing other doctors from NYTimes

A fascinating piece from the NY Times (nyti.ms/1b1IqCM ) indicates that many physicians are quick to disparage other physicians, even when the care that was provided was appropriate. Below is an excerpt:

Over the last decade, few issues have garnered as much interest among health care experts as disrespectful behavior among doctors. While sociologists have devoted careers to researching the topic, it wasn’t until the 1990s that the medical profession itself began to take serious note.

Spurred on by the increasing complexity of medicine, concerns about safety and patient satisfaction and an ever-growing urgency to contain costs, the Institute of Medicine convened a national panel of health care experts to discuss “the chasm” between what could be and what was actually being done for patients. In 2002, they published an ambitious report that called for a “sweeping redesign of the entire health system.” Realizing that vision, said the panel, would require, among other changes, better collaboration and cooperation among physicians and the creation of a “culture of respect.”

Medical schools, regulatory agencies, professional organizations and entire health care systems responded to this cri de coeur. Official definitions of professionalism were rewritten to incorporate the concepts of teamwork and shared responsibility. Schools added mandatory coursework on thewhys and hows of working in a team. And licensing and accreditation boards began asking for evidence that doctors could not only lead, but that they also knew how to work as part of a team.

But this new study reveals that old habits and responses die hard.

Researchers trained three actors to portray “standardized patients” with advanced lung cancer who had recently moved to town after being treated by another doctor and who remained unsure about their diagnosis or prognosis. The actors, carrying medical records written to reflect only universally accepted guidelines of care, made a total of nearly three dozen office visits to various family physicians and cancer specialists working in the community.

The actors were not told to elicit the doctors’ opinions about their previous care; but after analyzing transcripts from each office visit, the researchers found that in 40 percent of the consultations, doctors went ahead and spontaneously offered their opinion anyway. A tiny percentage of these comments were neutral; a third were supportive. The vast majority, however, were unabashedly critical, with the doctors’ comments ranging from “Hell, you don’t want to trust doctors,” to “This guy’s an idiot!”

“Doctors will throw each other under the bus,” said Susan H. McDaniel, lead author of the study and a professor of psychiatry and family medicine at the University of Rochester Medical Center. “I don’t think they even realize the extent to which they do that or how it can affect patients.”

Probably, added Dr. McDaniel, most of the comments were unintentional. Faced with a constant pressure to cut costs, increase productivity and keep patients happy, plus the additional difficulty in this case of discussing prognosis with a terminal cancer patient, many of the doctors no doubt experienced significant levels of stress. In the moment, criticizing another physician to a patient might have felt like an effective way to fortify their own credentials and build up the patient’s trust.

“There is probably something reassuring in saying, ‘Boy, your doctor didn’t do a good job and now I’m going to take care of you,’” Dr. McDaniel noted. “But those kinds of comments are bad for the patient.”

200 years of Health Law

“We must not see any person as an abstraction.  Instead, we must see in every person a universe with its own secrets, with its own sources of anguish, and with some measure of triumph.” Elie Wiesel

For those who want to specialize in health law quickly, a good reference is NEJM 2012; 367: 445-50 which completes the task in five pages (& includes the quote from Elie Wiesel).

  • Apparently physicians and lawyers did not get along much better in 1812 according to this article.  Thomas Percival’s original title for his influential 1803 Medical Ethics text was Medical Jurisprudence.  About half of this text is devoted to “professional duties…which require a knowledge of law.”
  • Early medical malpractice case in 1767: Slater v Baker and Stapleton.  Slater sued after treatment for his broken leg had a poor result; the jury awarded £500 (equivalent to £60,000 in 2012).
  • Coffee quack case in 1807. A “physician” claimed to cure all fevers with several concoctions, including drugs he called “coffee.”  When a patient died, it was felt that he had been poisoned by the “coffee.” The so-called physician was brought to trial but acquitted.  The judges instructions: “it is to be exceedingly lamented, that people are so easily persuaded to put confidence in these itinerant quacks.”  No adequate legal remedy if prescribed “with honest intentions and expectations of relieving his patients.”  This case led to the first physician-licensing law in 1818 (Massachusetts).

Landmark events:

  • 1905 Jacobson v Massachusetts –no right to refuse smallpox vaccine
  • 1946-47 Nuremberg trials –Nuremberg code set forth in judgement
  • 1973 Roe v Wade –right to terminate pregnancy
  • 1990 Cruzan v Director (Missouri Dept of Health) –right to refuse life-sustaining treatment
  • 1997 Washington v Glucksberg and Vacco v Quill –no right to physician-assisted suicide
  • 2012 Nat’l federation of independent business v Sebelius –upheld patient affordable care act