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Reducing Medical Malpractice Claims By Physicians Most At Risk For Suit

Steven E. North, Esq.
Jason Persaud, Paralegal


Doctor, you are going to face a Malpractice Claim by age 65.
To Be Sued Less, Doctors Should Talk More.

There are many specialties in medicine. Each specialty deals with specific parts, organs or systems of the body. In order to be "specialized" in a particular field of medicine, physicians advance their medical education and training after they have completed medical school by participating in residency programs in their specialized area for a number of years and sometimes proceed to fellowship programs where there is further sub-specialization.

Since each specialty involves different systems of the body and consequently varying risks of injury if things go awry, it may not be surprising to learn that each specialty carries its own risks of facing malpractice claims. Neurosurgery, which deals with operating on the brain and spine, carries a high risk of serious injury if there is a mishap and is thus associated with more malpractice claims. On the other hand, psychiatry, which does not involve invasive procedures, carries a lower risk of complications and is associated with less malpractice claims.

The Wall Street Journal addressed this subject in an article published on August 17, 2011. The author makes reference to a study that was published in the New England Journal of Medicine which analyzed data from professional liability insurers from 1991 through 2005. The data was used to determine the risk of a malpractice claim during a physician's career, based on specialty.

The study, entitled "Malpractice Risk According to Physician Specialty", concluded that the risk of a physician facing a malpractice claim is 7.7% per year. The study pointed out that neurosurgeons carried the highest risk, with 19.1% facing malpractice claims, while psychiatrists carried the lowest risk, with only 2.6% facing malpractice claims each year. The top five specialties that have the highest risk of law suits were neurosurgeons, thoracic-cardiovascular surgeons, general surgeons, orthopedic surgeons and plastic surgeons. The specialties that carry the lowest risk of suit are psychiatrists, pediatricians and family physicians. According to the study, 36% to 88% of all physicians will face their first malpractice claim by the age of 45 and 75% to 99% will face a malpractice claim by the age of 65.

It is understandable why surgeons carry the highest risk of malpractice claims since they often perform high-risk procedures which can result in significant damage if due care is not exercised. An errant surgical procedure can lead to serious and permanent injury to vital organs such as the back, heart, brain and spine.

Psychiatrists, pediatricians and family physicians carry lower risks of malpractice claims because they do not perform major invasive procedures. And, if surgical care is necessary, the patient is referred to a specialist for further management. The referral will ordinarily "take them off the hook" because the critical care and treatment will have been provided by the specialist.

Considering the high risk of malpractice claims against physicians, it may be of interest to explore the factors that affect the risk of being sued. Are medical errors the sole factor in determining whether or not a physician will be sued, or is the decision more complex?

The New York Times on June 1, 2015 briefly addressed this topic in "To Be Sued Less, Doctors Should Consider Talking to Patients More." The article noted that some physicians practice "defensive medicine" to lessen the risk of being sued. Defensive medicine is the practice of ordering testing, consultations and procedures that may not be necessarily indicated, but are ordered because of the physician's personal concern that some unlikely condition will be overlooked and a medical malpractice suit will follow. According to the article, studies do not support that the practice of defensive medicine reduces the doctor's risk of being sued. It notes that the better way to reduce the risk of malpractice claims is to have better communications with their patients. The article makes reference to a study that examined suits related to deaths or permanent injuries of newborns. The study, "Factors That Prompted Families to File Medical Malpractice Claims Following Perintal Injuries", was published in the Journal of the American Medical Association. It reported that a third of mothers said that their doctor would not talk openly to them, that half of the mothers said that their doctor had tried to mislead them and that seventy percent of the mothers said that they were not warned about long term neuro developmental problems in their children. Lack of communication is an obvious issue.

The article also references a study which looked at the relationship between physicians' history of malpractice suits and their patient's satisfaction. In the article, Physician-Patient Communication: A Key to Malpractice Prevention, published in the Journal of the American Medical Association, poor communication was cited as the most common complaint.

The theory that lack of communication between physicians and patients result in an increased risk in malpractice claims was tested in 2001 in a study performed at the University of Michigan aimed to improve communication surrounding medical errors. This medical error disclosure program encouraged doctors to tell patients about the errors, how they occurred and what would be done in the future to make them less likely to reoccur. The doctors were also encouraged to apologize and offer compensation for harm if it occurred. This strongly opposes the standard "deny and defend" posture commonly associated with physicians who are being sued. For physician to admit error is sometimes viewed as the nail in the coffin in malpractice claims. The results though, may be surprising. A follow up study published in 2014, that looked at how the program affected gastroenterology claims in particular. The article, Liability Claims and Costs Before and After Implementation of a Medical Error Disclosure Program, published in the Annals of Internal Medicine, found that despite a 72 percent increase in clinical activity, the rate of claims per patient encounters decreased 58 percent. The mean liability per claim decreased from $167,000 to $80,000 per claim.

Studies have shown that family physicians are more likely to spend time educating patients about their care, more likely to use humor and more likely to try to get their patients to talk and express their opinions. In "Physician-Patient Communication: The Relationship with Malpractice Claims Among Primary Care Physicians and Surgeons", published in the Journal of the American Medical Association, it reported that habits such as educating patients in advance on what to expect during their visit, laughing and using humor, checking the patient's understanding, listening to the patient's opinions and encouraging patients to talk decreased malpractice risk. The article reported that primary care physicians who did not have claims against them spent more time with each patient during a routine visit, as opposed to primary care physicians who have claims against them.

In the previously discussed article, "Malpractice Risk According to Physician Specialty", general family physicians were among the top five out of 26 specialties least likely to face malpractice claims. Another reason may be that family physicians have long standing relationships with their patients and are less likely to be sued by those patients. Those physicians who are called in to performed surgery and ordinarily have limited contact with the patient are well advised to spend some extra time to develop a more personal relationship with the patient.

With so many means of communication today, physicians now have many ways to stay connected to their patients. E-mails, video conferencing and text messaging are just a few options of modern communication modes. Physicians can follow up with patients from their homes. Questions and concerns can be quickly addressed by email.

It is recommended that doctors take extra time to develop better relationships with their patients. Not only should they thoroughly explain the patient's current condition, including diagnosis, treatment options and prognosis, but might also demonstrate a personal interest and concern for the patient and his or her social and family environment. Patients who leave their physician's office satisfied and feel that the doctor actually "cared about them" would be less likely to file a claim against that physician. The extra few minutes spent with a patient and a small shift in "attitude" may seem minor, but could perhaps save the physician from a lawsuit.