WELLNESS
01/29/2016 11:56 am ET

Many Doctors Who Face Malpractice Suits Are Serial Offenders

But there's not much we can do about it.
OJO_Images via Getty Images

A tiny fraction of doctors are responsible for a surprising number of malpractice claim settlements, according to new research published in The New England Journal of Medicine.

Just one percent of doctors were linked to 32 percent of malpractice settlements paid out between 2005 to 2014, according to anonymized data collected from the U.S. National Practitioner Data Bank, which tracks nationwide information on all practicing physicians' malpractice suits and their settlements.

What's more, the greater the number of claims a doctor settled, the chances they'd pay out another one in the future were exponential. Doctors who settled two malpractice suits had about twice the risk of being involved in a third settlement when compared to those with just one settlement. And doctors with three paid malpractice settlements were three times more likely to be accused of malpractice and pay out again.

The highest risk doctors -- those with six or more paid settlement claims -- had more than 12 times the risk of a recurring settlement payment.

While the study's findings are meant as a wake-up call for hospitals and liability insurers, they are also an important reminder to patients that a minority of doctors may still be practicing despite disturbing track records.

Who is most likely to face malpractice

Certain kinds of doctors are more likely to be involved in recurring malpractice settlements. Neurosurgeons, orthopedic surgeons, general surgeons, plastic surgeons and OB/GYNs were about twice as likely to have repeat malpractice settlements compared to internal medicine doctors, even after the researchers controlled for the inherent risk of things like surgery.  

Male doctors were also 40 percent more likely to have a recurring settlement compared to their female colleagues, while physicians younger than 35 only had about one-third the risk of recurrence compared to older ones. As these young physicians grew older, their risk of recurrence increased. 

In all, the study analyzed 66,426 paid malpractice claims for 54,099 doctors over ten years. Almost one-third of the claims centered around patient deaths. Fifty-four percent were suits about serious physical injury. Most malpractice lawsuits ended in settlements and averaged $371,054; only three percent resulted in verdicts.

How patients are protected

By federal law, when a hospital is thinking about giving a doctor admitting privileges in their institution, they have to look up his or her malpractice and disciplinary history in the Data Bank. Only hospitals, medical boards and federal investigators are allowed to query the databank in full, so patients don't have access to this information. 

In one sense, patients can feel assured that the hospital has already vetted a doctor and knows their full history, good or bad. But the law doesn’t stipulate what hospitals do with that information, or how it should inform their decision-making process, which explains why some high-risk doctors are still working.

The study's lead researcher David Studdert, a medicine and law professor at Stanford University School of Medicine, says he intended his findings to be a call to hospitals, liability insurance companies and other institutions about this minority of high-risk doctors. Studdert calls his work an important step in developing a predictive, national tool that could one day identify high-risk physicians before they start accumulating malpractice claims.

"Can you identify high risk physicians early on?" Studdert said. "If the answer is yes, then [institutions] want to hook into some kind of intervention program that can get in and reduce those risks." 

If our study provokes a debate about what the right level of transparency is for multi-claim physicians, I think that’s a good thing David Studdert, senior researcher

What malpractice actually means

Overall, very few doctors are sued for malpractice. Over the 10-year period Studdert analyzed, only six percent of all practicing American doctors were linked to a paid malpractice settlement. And just because a doctor chose to settle a malpractice suit, it doesn’t necessarily mean he or she is admitting to malpractice, he pointed out. It could be a strategic move to avoid the costs of a lengthy lawsuit. It also could be that an investigation revealed he or she delivered substandard -- but not negligent -- care, and the settlement is an acknowledgment of that.

"It may be that the physician is delivering substandard care, it may be that physician has poor conversational skills or some combination of those things,” Studdert said about recurring claim settlements. "But either way it’s a little bit of a warning sign and suggests at the very least that someone should be looking into the quality of care that clinician is delivering.”

Some states make data malpractice settlements and disciplinary action for doctors available through the state medical board, either on a website or by submitting a formal request, according to The Washington Post. Consumer sites like docinfo.org or healthgrades.com, which spit out reports on disciplinary actions and settled lawsuits, are also avenues for research, notes the Post. But the information probably won’t give you much insight into why that claim was settled, or for what.

Say you’ve got an upcoming breast cancer surgery and you want to research your surgeon. You may not know if the claim settled against your doctor was for breast surgery or something else completely unrelated to the type of procedure you’re getting, says Studdert, which makes this kind of data imperfect.

Arthur Caplan, founding director of the division of medical ethics at NYU’s Langone Medical Center, pointed out that another problem with the available public databases is that they show only settled claims -- not ongoing lawsuits. Patients could try to ask the doctor or surgeon face-to-face how many malpractice suits they’ve settled or how many are ongoing, he added, but while they should expect an honest answer, there are “no guarantees.”

"I don’t think the potential patient can do much except get second opinions," said Caplan.

While Studdert’s findings are aimed at hospitals and other medical institutions, he understands the curiosity and worry it might arouse in patients. But he hopes his analysis demonstrates that malpractice lawsuits are a highly concentrated phenomenon among a small percentage of practicing doctors, and that the claims are skewed even more toward a few physicians who are sued again and again.

"If our study provokes a debate about what the right level of transparency is for multi-claim physicians, I think that’s a good thing,” he concluded.

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