Jeff Segal, MD, JD, FACS
Imagine telling your patient the success rate of a surgical procedure you were planning was 20%. year after year. Most patients would hit the door. Unless the only other option – doing nothing – was far worse.
That’s precisely the conclusion drawn from Jena, et al. in a New England Journal of Medicine article released this week – Malpractice Risk According to Physician Specialty. Data was analyzed from a large national carrier covering time period 1991-2005. The researchers analyzed 230,000 physician-years of coverage.
Each year of the study period, 7.4% of all doctors had a malpractice claim. Only 20% of those led to payment – either by settlement or judgment. The majority of claims resulted in zero payment to the plaintiff. Remember, though, the typical claim lingers for about four years before final resolution.
More interesting was breakdown by specialty. Annual risk for being sued:
- Neurosurgeon 19%
- Thoracic surgery 19%
- General surgery 15%
- Orthopaedic surgery 14%
- Plastic surgery 13%
- Gastroenterology 12%
The lifetime risk (suit by age 65) of a high-risk specialist being sued was almost 100%. The lifetime risk of a low-risk physician being sued was almost 80% – yes, that’s low risk.
While these eye-popping numbers will not surprise many people, they do solidify the claim that there’s a good reason for defensive medicine. The risk of being sued is significant. And, it’s not as if these claims are paying large numbers of negligently injured patients. The majority of cases are closed with no payment to the plaintiff.
None of this is to suggest malpractice does not occur. It does. But, the time-consuming adversarial system of litigation appears ineffective at helping injured patients, protecting the rights of defendant doctors, or efficiently administering justice. What does the system do? It adds billions upon billions of dollars in defensive medicine costs – money that could be redeployed for more useful purposes.
There is always one more thing out to get you…..you go to work and the list keeps getting longer on who is in line to take a bite out of your butt!
Solution: it is time to strike. Let the governors, legislators, and President see the patients. Retirement keeps looking better every day.
Briefly as possible. I haven’t been sued since I was sued in 2005. I adopted some lines of defense.
1)Every visit for every patient (with rare exceptions) the patient is given a typed copy of the progress note after the registered nurse goes over the instructions I gave verbally, & then amplified and perfected in a typed progress note. The notes are copied as typed into the harddrive, and later sent to the specialists working in the case.
2) I do not answer calls verbally, off the cuff. The message is typed by the secretary into the patient record. The nurse has a go at the message with the chart in hand. then I make a final determination response documented in the hardrive.
3) Everyone who needs narcotics chronically is referred to pain management. the board of Health has an unwritten but psot facto enforced rule if the nonspecialist can’t fully ameliorate the pain in two years the pain management has to be under a narcotic contract etc.
4) I answer every insult to the integrity of my office or my professional work. Even when the other office says “we did not get the authorization” then we produce the time the authorization was faxed. And then I tell the patient to come pick up a second copy and hand carry it to the recipient office. I enforce a head nouggy on any clerk or person who uses me as a scapegoat.
3) I only work with persons on the phone who are straightforward enough to provide their first and last name or have an identifier. This includes nurses, agencies, insurance companies and offices. As a result of their duplicity I fired United Health Care.
Not exactly good news for defenders of the status quo. I wonder if the national media will report on this study? I say this tongue-in-cheek as they typically (and rapidly) report all studies (sometimes before publication) that cast aspersions on physicians, hospitals, drug companies and equipment manufacturers which has fueled the “call a lawyer” TV and internet ads (they compete with Jerry Springer) that are played continuously on daytime TV as they are watched by patients in their hospital rooms.
I have long held that one of the reasons there is no public outcry for tort reform is that the cost of litigation and defensive medicine is totally sheltered from healthcare consumers. We should all recall when the price of fuel rose. Every provider of service that uses fossil fuels (from airlines to the waste hauler) added a “fuel surcharge”. If we were to adopt this strategy (as we should), the laws of economics would have helped solve this problem long ago.
This is one area where organized medicine has failed to provide leadership. The mere suggestion that physicians could ethically and directly pass on the cost of their liability insurance (outside of the fee for providing the medical service which is stipulated in a contractual agreement with a payer), would most certainly provoke a national debate on the subject from which only good things could emerge.
As an OBG, I would allocate my premium cost proportionally to my OB and GYN patients based on the likelihood of being sued as calculated by underwriting standards. The barristers should have no problem with such a healthcare liability surcharge because the right to sue “ad nauseam et in perpetuam” is preserved along with their wonderful, efficient civil justice system that does such a remarkable job at metering out justice and preventing future mishaps. The difference is this time, the people paying for the maintenance of this marvelous system are not healthcare providers and their insurers- it’s the consumer of the services.
The answer here is to use the health care dollar for health care, attempt to benefit and improve the life of patients who have bad outcomes, and improve the practices of physicians and hospitals.
Get rid of the tort system. Develop skilled panels to make decisions on claims. Use existing data from workmen’s compensation, military medical compensation boards, veteran’s administration guidelines – there are many available to determine reasonable compensation.
Pay knowledgeable physicians, capable lawyers, and astute lay people to constitute panels to review the claims and determine both the extent of the patient’s problem and the issue of negligence.
Make rapid decisions that involve mitigating the injury – even if not malpractice a bad outcome or serious complication is a huge financial and emotional stress on the patient and the family. Institute algorithms for payment of some economic losses, while promoting rehabilitation and return to productivity and normalcy. This compensation and rehabilitation does not have to be limited to those who have negligent care but can include any patient who has an adverse life altering outcome.
Use the panel to determine if the physician or hospital actions led to the bad outcome, and teach others to avoid this problem in the future. Discipline physicians with recurrent problems or impairment to protect patient safety. Make it national so that bad practitioners cannot move to another state and start up again. (Footnote – why can we not have a national medical license system, rather than re-applying state by state – and running into barriers during disaster relief??)
No one benefits from the tort system as we currently have it, except for trial lawyers and those that bottom feed with them. We need a system that addresses grievances quickly, provides relief and assistance, ensures rehabilitation, and promotes improvement in medical decision making and outcomes.
Firstly, we could not get a group of Doctors to agree on the time of day much less strike in a uniform manner. Our profession is still heck bent on devouring each other professionally and often personally. I suppose this all began during premed when allegedly some folks removes reference pages from the library books to get an edge. (Yes I am that old-pre any computers). We are a dysfunctional group.
Secondly Owen, I applaud your approach but your self imposed behavior falls into the recent article in a blog called the razor which accurately bemoaned the unfunded mandates for which we are responsible:
http://www.therazor.org/?p=3747
I hope you can access this interesting article. We act as if the time we spend doing other people’s jobs is inconsequential to operation of a medical practice.
I have recently experienced litigation. After dodging the minefield of “Expert” review I fear that the knowledgeable physicians and capable lawyers etc will not show up. The physicians who will are those we do not need in our profession.
No offense intended to anyone. This is the business we have chosen-in one generation we have allowed ourselves to be marginalized in almost every monitoring, leadership and quality control position.
After 30 years of attending every staff meeting, every M&M committee and the like, I have learned there is no reward for such behavior.
With all due respect to Dr. Baker, who suggests above that the “tort system” for malpractice be abolished and replaced, such an action is absolutely impossible. The tort system is established so that the administrators of the system, lawyers, courts, court reporters, judges, etc. can make money from it, a great deal of money.
In short, it is a highly profitable industry. Unless a substitute system can be monitized so that its participants can continue to use the process to make a great deal of money, they will never tolerate it.
Legislators, both on the Federal and State level are over 90% lawyers. Any lawyer, even the one on YOUR side has a vested interest in defending the status quo. Legislators have a vested interest in maintaining the system under which they were trained and practice their profession.
The tort system is a failure for most victims who desire and need recompense for their suffering and possible damage. But it is a resounding success for the people who operate the system. This is expressed in the unsurprising fact that 80% of suits against doctors fail to get anything.
That money is wasted on process. But to the participants of a tort system, PROCESS PAYS.
Sanjose Mike
Not much news here. The system is unfair and targets too many innocent physicians and misses majority of individuals who are harmed by truly negligent care. See http://bit.ly/nfZbXK
George, you hit the nail on the head when you said we could not get a group of doctors to agree to the time of day. Other doctors are own worst enemy. We have high incomes and should be the most influential group in the country.
The fact is that we don’t support each other. I agree that this self preserving attitude starts in the pre-med years. Medical schools reward this behavior by selecting those individuals that kept the blinders on got the good grades, etc. It is amazing how quickly a peer with throw another physician under the bus to save himself. This is a result of that self centered attitude we have as physicians.
The legal system is too much of a mess to fix in my lifetime. And yes, 90% of the lawmakers are lawyers so we might as well forget any tort reform.
Most cases have nothing to do with right or wrong. We all know it is 100% about the money. The biggest problem I have is with the hired gun “expert” witnesses and their unethical testimony. Those physicians are just as much part of the problem as the lawyers. As a matter of fact, they are worse in that they are turning on their own with their unethical testimony. Tort reform would not be needed if is wasn’t for unethical greedy physicians testifying as plaintiff “expert” witnesses.
Medical Justice has taken the first steps to address the problem. Physicians that give unethical, inaccurate testimony and essentially lie on the stand, should me made accountable for their actions. They should somehow be made outcasts of the medical community. Their testimony should be published in national professional journals. Those actions will eventually result in decrease revenue for these individuals, which is the only language they will understand.
George-
It is good to see someone who gets the problem. In reality, it would be next to impossible to sue a doctor if no other doctor will testify against them. Personally, I believe physicians should go to their Boards. AANS has a strict policy for neurosurgeons. If it is found they have turned into an “expert witness” the board can strip the neurosurgeon from him; especially if they are only testifying to one point of view.
Oddly enough, and I work with quite a few neurosurgeons, their lawsuits seem to be mostly related to spine. So, in these cases, lawyers can go get an orthopedic spine surgeon to testify. No offense to the Ortho Spine Surgeon, but this is not really a peer (they didnt have the same training, etc). But, thats how Neurosurgeons get attacked.
Medical Justice tries to keep this at bay with their patient agreements stating physicians of the same specialty board should be utilized. But, lawyers who are willing to sue, dont care.
Physicians need to have a common front. Every physician I have met speaks of Tort reform as if it is easily attainable, yet they will also speak negatively on their physician peers. Some of them have even testified against other physicians or, worse, have inspired a patient to sue.
If physicians want everyone to take them seriously, they do need to have a common interest and ALL physicians must support it. Even if this is just on a local level (which is very important), a banded group of physicians can prevent suits by not agreeing to testify.