Most Physicians Will Face Malpractice Claims

While most physicians in the United States will face a malpractice lawsuit at some time in their careers, a new study finds the vast majority of those suits will not result in payment to a plaintiff.

The report, which will appear in the Aug. 18 edition of The New England Journal of Medicine, provides the most comprehensive analysis of the risk of malpractice claims by physician specialty in more than two decades and finds that the annual chance of a claim varies from around 5 percent in low-risk specialties to nearly 20 percent in specialties at the highest risk.

“Physicians in any specialty are generally interested in knowing how likely they are to face a malpractice claim, whether they are likely to make a payment and how large such a payment would be,” said Anupam B. Jena, a member of the Department of Medicine at Massachusetts General Hospital and the study’s lead author. “Naturally, physicians in each specialty believe they are getting sued more often than average. But while anecdotes abound, actual facts on who is getting sued and for how much have been unavailable until now. Identifying which specialties are most likely to face frequent litigation may help guide malpractice reform.”

Jena and his colleagues at the Harvard Kennedy School, the Leonard D. Schaeffer Center for Health Policy and Economics at USC and the RAND Corporation analyzed claims information covering the years 1991 to 2005 from a major malpractice insurer operating in all 50 states and the District of Columbia. The Schaeffer Center is a collaboration of the USC School of Policy, Planning, and Development (SPPD) and the USC School of Pharmacy.

Data collected reflected more than 230,000 physician-years of coverage involving almost 41,000 individual physicians. The investigators calculated the annual percentage of physicians in each specialty that faced a claim, distinguished claims that led to a payment – either from a court decision or an out-of-court settlement – and measured the size of those payments. They also determined which specialties faced higher or lower risks of either facing a claim or making a payment and calculated the career-long risks of facing claims for high- and low-risk specialties.

During each year of the study period, 7.4 percent of all physicians had a claim filed against them, but only 1.6 percent made a malpractice payment. Specialties with the highest risk of facing a claim were neurosurgery (19.1 percent), thoracic and cardiovascular surgery (18.9 percent) and general surgery (15.3 percent). The lowest risks were seen in family medicine (5.2 percent), pediatrics (3.1 percent) and psychiatry (2.6 percent). However, only about 20 percent of all claims actually led to a payment, and those specialties most likely to face claims were not always most likely to pay claims. The average claim payment was almost $275,000, and the cumulative career risk of facing a malpractice claim was 99 percent in the high-risk and 75 percent in low-risk specialties.

“We were surprised that the probability of facing at least one malpractice claim over the average physician’s career was so high and particularly that so many claims did not result in payment,” said Amitabh Chandra, professor of public policy at the Harvard Kennedy School and corresponding author of the report. “The malpractice insurance that physicians purchase does not insure them from the emotional costs of being involved in litigation. These ‘hassle costs’ have no social value, and given the frequency of litigation, our findings support physicians’ perceptions of the inefficiency of the current malpractice system.”

Co-author Seth Seabury, a member of RAND, added: “It is a near certainty that, over a lengthy career, a physician in a high-risk specialty will be accused of malpractice, but the vast majority of these suits will be unsuccessful. Calls for system reform will persist until a way is found to promote faster, less costly resolution of these claims while maintaining fair compensation for deserving patients.”

Study co-author Darius Lakdawalla, director of research at the Schaeffer Center and associate professor at SPPD, concluded, “In the final analysis, everyone entering the field of medicine, no matter their specialty, can be reasonably confident that they will eventually face a malpractice claim. That speaks to the pervasiveness of malpractice litigation and the hold of the legal system over the medical profession.”

The study was supported by grants from the RAND Institute for Civil Justice and the National Institute on Aging.

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