One Paid Medical Malpractice Claim May Signal More to Come

— Study finds docs with a paid claim more likely than claim-free peers to face another over 5 years

by
Sophie Putka, Enterprise & Investigative Writer, MedPage Today
February 10, 2023

Physicians who had a prior paid medical malpractice claim were three to four times more likely to have future claims, according to a retrospective case-control study, challenging the commonly held notion among physicians that medical malpractice claims are simply bad luck or random events.

Among every physician licensed to practice in the U.S. at the time of the study, one prior-period (2009-2013) claim was associated with a 3.1 times higher likelihood of a future-period (2014-2018) claim for high-risk specialties (95% CI 2.8-3.4) and a 4.2 times higher likelihood for lower-risk specialties (95% CI 3.8-4.6), reported David A. Hyman, JD, MD, of Georgetown University Law Center in Washington, D.C., and colleagues in JAMA Health Forum.

“A fourfold increase in risk, whether you’re a high-risk specialty or a low-risk specialty, based on having just one prior claim — that indicates this is a long way from random,” Hyman told MedPage Today.

Overall, 3.3% of the 841,961 physicians with zero paid claims in the prior period had one or more claims in the future period compared with 12.4% of the 34,512 physicians with one paid claim in the prior period, 22.4% of the 4,189 with two paid claims in the prior period, and 37% of the 1,214 with three paid claims in the prior period.

Relative to physicians with no prior-period claims, the risk of a future-period claim was 3.7 times higher for physicians with one prior-period claim (95% CI 3.3-4.4), 6.7 times higher for those with two prior-period claims (95% CI 5.9-7.9), and 11.2 times higher for those with three or more prior-period claims (95% CI 9.8-13.1).

Hyman and team also compared ratios of actual-to-predicted future-period claims, with the “predicted” claims based on a simulated “random” claim distribution among doctors. The ratio grew larger with more prior-paid claims, and also with more actual future-paid claims. For example, physicians with one prior-period paid claim were 16 times (95% CI 12.5-19.3) more likely than with random claim distribution to have two future-period claims.

“The magnitude of the increase in risk was pretty striking,” Hyman noted.

The researchers also looked at whether the risk for more future paid claims increased for physicians in higher-risk specialties, including obstetrics and gynecology, surgery, urology, and otolaryngology. Though the absolute risk for future-period paid claims was higher for high malpractice-risk specialties, the relative increase in risk between physicians who did versus those who didn’t have a prior-period paid malpractice claim was similar for high- and low-risk specialties.

Of note, public disclosure of claims in 19 states did not affect the likelihood of having future claims, when comparing physicians with no prior paid claims and those with one prior paid claim. This finding counters what’s known as the “blood in the water” effect, wherein plaintiff’s lawyers that can access prior claim information might be more likely to bring a claim against physicians with prior paid claims.

Though prior studies have examined the relationship between past and future malpractice claims, Hyman said this study was the first to bring in physicians with zero paid malpractice claims and compare them to physicians with one or more in the prior period.

The association between past and future malpractice claims isn’t necessarily a reflection of physician technical skill, Hyman noted. It could be due to other factors, like poor communication or bedside manner, which might make a doctor more claim-prone. (“When I teach medical students, I tell them, there’s a four-letter word that predicts whether you’ll be sued: it’s J-E-R-K,” he added.)

However, he said it is something that should be paid attention to instead of dismissed.

“This indicates that we should take seriously the signal that’s being provided by the malpractice system, rather than just saying, ‘Oh, it’s just garbage, we should ignore it,'” Hyman said.

He and his team proposed combining their findings with data on unpaid medical malpractice claims, specialty, disciplinary actions by state medical boards, loss of hospital privileges, and other adverse events. If the pattern is skill-related, interventions could include continuing medical education on error avoidance, closer supervision, counseling, and refresher training, among others.

Hyman said that while disciplinary boards have a framework for addressing problems with individual physicians, “when that happens, it’s usually not because of a quality of care issue. It’s because of what I call ‘character issues’ — sex, drugs, and rock & roll.”

He pointed to high rates of substance abuse among doctors, who work in high-stress environments, and around drugs. “We ought to be equally concerned with doctors who have quality of care difficulties that are unconnected to ‘character issues,'” he said.

For this study, the researchers used the National Practitioner Data Bank, which documents all paid medical malpractice claims since 1992. They obtained counts of practicing physicians in every state from the Area Health Resource File, totaling 881,876 licensed MDs.

Hyman and team noted that they did not have data on the number of patients each physician sees, and could not determine whether some physicians were willing to treat riskier patients, which could expose them to more malpractice suits. They also didn’t have data on unpaid claims, and assumed no physician entry or exit during the prior and future periods.