Jan 31, 2016 (updated Jan 15, 2017)
The Journal of Patient Safety recently published an article entitled, "The Detection, Analysis, and Significance of Physician Clustering in Medical Malpractice Lawsuit Payouts" (SEE) Last year the NEJM published similar research, (SEE) , indicating that a small number of physicians account for a disproportionate amount of payments for malpractice suits and are likely to be sued again. The authors of the most recent study conclude
" There is a clustering of payments in medical malpractice cases among a small group of physicians. These findings point up the need to oppose the negative impact of such outlier physicians on the safety of patients"
While the conclusion seems to be common sense, it gives a very inaccurate and incomplete impression of the data. Is it fair or reasonable to conclude that these are all "unsafe" doctors? The above study highlights the need for a drill down analysis.
The highest risk specialties ( obstetrics, neurosurgery, orthopedics) of course get sued more frequently but also within the specialty, such as orthopedics, are sub specialty practitioners, like pediatric spine surgeons, at even higher risk. Many cases settle due to tragic outcomes and not failure to comply with the standard of care. The highest risk medical treatments have large potential for unexpected catastrophic injury and those with sympathetic patients, especially children, would clearly be expected to be sued more frequently and have paid claims.
I personally was involved in a case, as an expert, involving a child born with multiple congenital abnormalities which settled for over $30,000,000 in which there was NO deviation from the standard of care by the treating physicians. We should not come to the false conclusion that pediatric orthopedists, pediatric neurosurgeons or obstetricians taking care of the highest risk pregnancies are the least competent. Paradoxically the physicians caring for the highest risk cases may be our most talented.
The highest settlements are more closely aligned to catastrophic medical injury and not necessarily substandard care. Insurance companies will often settle cases only to avoid a jury verdict based on a sympathetic patient who suffered a devastating outcome. I do not believe that these outlier doctors with adverse claim histories should be immune from scrutiny but malpractice claims and settlements by themselves are terrible measures of quality of care. The physicians with high claims need to have peer review analysis of the specific circumstances of the cases to assess the quality of the care provided. Only through a case by case analysis by qualified peers can quality and safe practice be fairly evaluated, not claims data.
We should be doing aggressive peer review, OPPE and FPPE data collection. Our current measures of physician quality are sub-optimal. Research over the past 40 years has shown that malpractice lawsuits identify less than one percent of physician errors . While malpractice data analysis makes for eye catching headlines, the reality is that it is frequently of dubious significance and highlights the need to create much better measures of high quality, safe practice of medicine.
Nicolas Argy, M.D., J.D.
Health/Business Consultant/Educator, Patient Safety, Quality, Risk Management, Public Health