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Predicting Potential Liability

On our firm’s general healthcare website, our colleague Christina Dwyer published the following post about predicting liability for healthcare providers. The moral to the story is that doctors who don’t communicate well tend to have more problems with claims. We see issues like this all the time in VA and military medicine cases. The patient is left in the dark or misinformed. Many potential problems can be solved with a simple explanation and, sometimes, an apology. To read the original article, please click here, or continue reading below: Predicating Potential Liability Studies have shown that 61% of physicians age 55 and over have been sued. Studies also show that over one ten-year period (2005-2014), approximately 1% of physicians accounted for 32% of paid claims. Physicians that have paid a claim at least once are exponentially more likely to be sued again. The questions then become, can we predict which physicians face a higher likelihood of lawsuit, and what can be done to prevent such suits?

  • Which practitioners are most likely to be sued?Age, sex, specialty, training and certification, claim and complaint histories, as well as the quality of care, can all help predict the likelihood of a lawsuit. Some of these factors, such as age and sex are inalienable, but provide a helpful risk assessment.Age seems to be somewhat indicative, especially for younger physicians. However, for physicians over the age of 34, the risk seems to level out substantially. The 10 year study referenced above evaluated 54,099 physicians that had paid at least one claim from 2005-2014. Of those physicians, 1% was 25-34 years old, 25% were 35-44, 39% were 45-54, and 35% were 55-64. The sex of the physician is strongly correlated with risk. Out of the 54,099 physicians, 82% were men (44,350).With regard to the remaining factors, it appears that a physician’s specialty provides the best indication of future claims. Physicians specializing in internal medicine (15%), obstetrics and gynecology (13%), general surgery (12%), and general practice or family medicine (11%), were at least twice as likely, and sometimes as much as 11 times as likely, to be sued than were other specialties. The least likely to be sued were neurology (1%) and psychiatry (1%).

  • Which practitioners are most likely to suffer recurrent claims? Interestingly, 1% of physicians studied accounted for 32% of all paid claims, whereas 84% of the physicians incurred only one claim during the studied period. As a general matter, the number of previous paid claims and a physician’s specialty were both strong indicators for risk of future claims. Physicians with two paid claims had almost twice the risk of another, while physicians with three paid claims had three times the risk, and physicians with six or more paid claims had twelve times the risk of recurrence.With regard to specialty, the risk of recurrence was twice as likely in the case of neurosurgeons, orthopedic surgeons, plastic surgeons, general surgeons, and obstetrician-gynecologists, compared to the risk for internal medicine physicians. The lowest risk of recurrence was among psychiatrists and pediatricians.

  • Can Practices Do Anything to Help Lower the Likelihood of a Claim? Though some believe defensive medicine (ordering extra tests, procedures, and office visits) help to prevent physician claims, studies do not necessarily support such theories. Rather, it appears the keys to reducing risk are communication and time. In support of this theory, many point to physician extenders (PEs), such as physician assistants and nurse practitioners, as examples. PEs are sued less frequently than their supervising physicians and many believe the lessened risk is because PEs spend more time with patients.

Further evidence comes from a study conducted at the University of Michigan which focused on improving communication when medical errors occurred. When such errors occurred, the program encouraged physicians to, at least, tell patients about them, explain how they happened, and explain what would be done to make them less likely to occur in the future. In cases where harm occurred, physicians were encouraged to apologize and offer compensation. Though some state laws make it impossible to offer apologies without accepting liability, it is clear that recommending physicians increase communication, especially in the cases of medical errors, could substantially lower the risk of claims. Fortunately, Virginia law allows certain expressions of sympathy and apologies to be made without fear that they will later be used against the healthcare provider.[ii] A study of the University of Michigan program revealed that in subsequent years, claims dropped 36%, and lawsuits dropped 65%. As a result, the monthly cost of total liability and patient compensation dropped 59%, and legal costs dropped 61%. Yet another study looked at the program’s effect of gastroenterology specifically, and found that although clinical activity had increased 72%, the rate of claims dropped 58%. As a result, the total cost to the healthcare system of malpractice in gastroenterology decreased by 64%. In a country where medical errors are the third leading cause of death, encouraging physicians to communicate and spend additional time with patients may go a long way in reducing possible claims.

David M. Suddert, L.L.B., Sc.D., et al., Prevalence and Characteristics of Physicians Prone to Malpractice Claims, 375 N. Engl. J. Med. 354 (Jan. 28, 2016).[ii] For more information regarding Virginia’s apology laws, see Va. Code § 8.01-581.20:1.