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.