Approximately 1% of all physicians account for 32% of paid malpractice claims (New England Journal of Medicine, January 28, 2016). Using the National Practitioner Data Bank as their resource, Stanford medical law expert David M. Studdert and his colleagues concluded that “a small number of physicians with distinctive characteristics accounted for a disproportionately large number of paid medical malpractice claims” from 2005 through 2014. Over this 10-year period, there were 66,427 claims paid against 54,099 physicians. A physician with three paid claims was found to have three times the risk of incurring another paid claim when compared to a physician who had only one previous claim. The vast majority of these claims were out-of-court settlements, and one-third involved alleged negligence leading to patient death.
This eye-opening study has not escaped the attention of the malpractice trial lawyers: “With the likelihood that physicians who have paid medical malpractice claims will continue to incur future claims due to similar behavior, medical malpractice attorneys should continue to be aware of this potential increase in verdicts and settlements” (posted online February 18, 2016, www.thenationaltriallawyers.org).
The obvious question: Will the medical profession passively accept this fatalistic prediction or will it take action by revealing the names of the repeat offenders, instead of allowing them to hide behind a number in the National Practitioner Data Bank? “Physician No. 33041 had at least at least 31 malpractice payments between 1993 and 2005, totaling more than $10 million in damages. Physician No. 43923 had at least 21 malpractice payments between 1992 and 2003, including eight improperly performed surgeries, three unnecessary surgeries, and two surgeries on the wrong body part. Neither doctor faced disciplinary action from a state medical board, according to the database” (The Wall Street Journal, February 3, 2016). Neurosurgeon Dr. Lawrence B. Schlachter, said more must be done to expose bad doctors. “A start would be to identify the doctors in the National Practitioner Data Bank [by name] and open the database to the public. State licensing boards should also embrace their responsibility by revoking the licenses for repeat offenders.”
Although these recommendations have merit, there’s more to this picture. Some specialties are simply at greater risk than others. According to the Medscape 2015 Malpractice Report, OB/Gyns, general surgeons, and orthopedists are the most likely to be named in a malpractice claim. Least likely to be sued are oncologists, followed by internists and family medicine doctors. It also needs to be acknowledged that some doctors are more likely to be sued because they are willing to take on more high-risk, complicated cases, not because they are negligent or lacking in competency. In the Medscape report, 50% of the doctors who were sued said they would not have changed their behavior. “The vast majority — 81% — said that saying ‘I’m sorry’ would not have helped.”
Most authorities agree that the key to improving the quality of patient care is the early identification of likely repeat offenders — the 1% of doctors responsible for the one-third of all paid malpractice claims. As noted by Dr. Schlachter: “Shielding the very worst doctors not only harms patients. It also casts a shadow on the overwhelming majority of competent, vigilant doctors, and on the reputation of the profession as a whole.”
Ken Teufel, M.D., M.A.