Category Archives: Medical Malpractice

AMA Study Finds Almost 1 Malpractice Claim Is Filed For Every Physician – Not Really Shocking

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No surprise I guess – Doctors remain targets of malpractice

Despite being in this business for 20 years, even this report left me in a momentary state of shock. A study from the American Medical Association (AMA) reports that an average of 95 medical liability claims are filed for every 100 physicians, almost one per physician. The AMA study looked at 42 specialties and was from a sample size of over 5,800 physicians.

The report reminded me of the question my now Ob/Gyn brother asked me as he was graduating medical school. “Who gets sued more? Regular obstetricians, high risk obstetricians, or ones that specialize in fertility?” My answer to him at the time was “they all get sued.” I did not truly realize how true that statement was until I read this report (for my brother and anyone else that may be interested, the AMA says 69.2%  Ob/Gyn doctors have been sued with Ob/Gyn physicians averaging 215 claims per 100 hundred physicians).

The AMA report also found:

  1. Nearly 61 percent of physicians age 55 and over have been sued.
  2. There is wide variation in the impact of liability claims between specialties. The number of claims per 100 physicians was more than five times greater for general surgeons and obstetricians/gynecologists than it was for pediatricians and psychiatrists.
  3. Before they reach the age of 40, more than 50 percent of obstetricians/gynecologists have already been sued.
  4. Ninety percent of general surgeons age 55 and over have been sued.

Med-Mal claims are not an indication of frequency of medical errors yet the cost to defend them is high

As the AMA reported in New AMA Report Finds 95 Medical Liability Claims Filed for Every 100 Physicians:

The number of medical liability claims is not an indication of the frequency of medical error, as the physician prevails 90 percent of the time in cases that go to trial.  While 65 percent of claims are dropped or dismissed, they are not cost-free.  Average defense costs per claim range from a low of over $22,000 among claims that are dropped or dismissed to a high of over $100,000 for cases that go to trial. This leads to increased costs for physicians and patients.

Are you shocked by this report or is it just par for the course?

6 Steps To Reduce Expenses For Medical Experts As Suggested By The Expert

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If you send it all, they will bill for reviewing it all

Lowering expert costs are simple if you just send only the information needed

I have been a medical expert for both the plaintiff and the defense for more than 40 years in various states.  I am amazed at the volume of unnecessary medical records and other material sent to experts for review.  Once I receive them I have to spend numerous hours, at considerable expense to lawyers and insurance carriers, wading through pages of irrelevant information and quite often duplicates of material.

How can this be avoided?  How can this unnecessary expense be reduced?  How can this process be streamlined and made more efficient?  The following are some suggestions:

  1. The lawyer or insurance carrier is aware of the plaintiff’s complaints and should restrict material initially sent to the expert to the time frame of the alleged malpractice event.  This may consist of anything from one page, when an incorrect dose or procedure was the cause of the malpractice suit, or a longer time frame if that is warranted, or to the particular admission in which the malpractice event took place.
  2. The lawyer should send the pertinent pages of the medical record on the event with necessary back-up material, e.g., pertinent laboratory, radiological or pathological reports, or pertinent focused nursing notes or flow sheets.
  3. All other material, e.g., medical records of previous unrelated admissions and duplicative or irrelevant information should be culled from the record and not sent to the expert. The appropriate culling of the record can be done by trained para-legal personnel at considerable less expense compared to this being done by the medical expert.  This will expedite the process and be more cost-effective.
  4. The medical expert should then request focused information to conclude his evaluation and report.
  5. If the case is to be settled (and I believe that 90% of them are) then this is all that should be required.
  6. Should the case go to trial, and should it be necessary, additional records can be sent to the medical expert for review in preparation for trial.

Editors Comment:

The costs to defend malpractice has been rising for years (see my post – Medical Malpractice Report Shows Increased Severity Despite Lower Frequency) and this is really a practical idea to help lower those costs. Once an expert receives the entire file they will be obligated to review the material. This suggestion need not be limited to just medical experts and can be used in a variety of cases where experts are retained. Experts are an expensive, necessary, part of the process, and looking for new ways to lower those costs are a good thing.

Any other suggestions for lowering expert costs?

Saying “I’m Sorry” Can Reduce Exposure to New Claims

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It may seem counter intuitive, but with the right technique a heartfelt apology can help lower claims costs and exposures

There is a wave of civility sweeping through the world of risk management as a way to lower exposure and reduce costs: Apologize. Maybe mom was right when she stood there and said “now say you’re sorry.” In fact, there are some very impressive statistics in the area of medical malpractice around the simple use of an apology.

For example, as Peter Bregman wrote in his article in the Harvard Business Review, I want you to apologize, “When the University of Michigan Health System experimented with full disclosure, existing claims and lawsuits dropped from 262 in 2001 to 83 in 2007.” Now those are numbers to pay attention to.

The Movement to Apologize

Increasingly there is a view that making an apology can significantly lower the risk of lawsuits. Admitting fault and making an effort to fairly resolve the damages can greatly reduce indemnity payments and significantly lower claim expenses. In Canada they actually legislated it under the Apology Act of 2009 which allows communication of sorrow or regret without worrying that the comments can later be used adversely in a civil court. See Dan Pinnigton’s The Apology Act 2009: Sorry is no longer the hardest word to say.

Using techniques to foster an appropriate apology have been shown to lower costs. Hospital customer service groups are teaming with Risk Management to help reduce lawsuits as recently discussed in the Everest Best Practice’s Blog post – Healthcare Risk Management and Patient Relations Collaborate to Reduce Litigation. In fact, an entire organization, Sorry Works, was formed in 2005 to help businesses shift the view that making an apology after a bad event will increase lawsuits. After an experience of medical malpractice, Doug Wojcieszak, founded the company to counsel companies on how to effectively apologize.

3 Steps to Disclosure

Sorry Works advocates a program that is predicated on a three-step disclosure process:

Step 1 – Initial Disclosure – is all about empathy and re-establishing trust and communication with customer in the immediate aftermath of an adverse event. Executives say “sorry” but fault is NOT prematurely admitted or assigned. Also, do NOT become defensive. Executives take care of the immediate needs of the customer (phone calls, transportation, food, etc) and promise a swift and thorough investigation. The goal is to make sure the customer never feels abandoned. In the spirit of good customer service, pull the customer closer to your company or organization.

Step 2 – Investigation – is about learning the truth. Was a mistake/error made, or not? They recommend involving outside experts and moving swiftly so the customer doesn’t suspect a cover-up. Stay in close contact with the customer throughout the process.

Step 3 – Resolution – is about sharing the results of the investigation with the customer, and their legal counsel. If there was a mistake, apologize, admit fault, explain what happened and how it will be prevented in the future, and discuss fair, upfront compensation for the injury or death. If there was no mistake, continue to empathize (“we are sorry this happened”), share the results of investigation (hand over charts and records to customer and their legal counsel), and prove your innocence. However, no settlement will be offered and any lawsuit will be contested.

The Art of Saying Sorry While Protecting Rights

Kevin Quinley suggests proper ways to apologize in Can Saying “I’m Sorry” Manage Risks?

  • Start with, “I’m very sorry that this has happened” Note: this does not acknowledge any negligence or liability.
  • Be concise. Do not go into detail or sound like you are making excuses.
  • Be prompt. Don’t delay. The quicker you can apologize and express regret for a situation, the better chance you have of nipping a potential claim in the bud.
  • Ask, “What can we do to make it right?” Use that as a starting point for negotiation.
  • If the other party is threatening to initiate litigation or you are concerned that litigation may be in the offing, do not send a written apology.
  • Even if the problem is not your fault, apologize for the situation and try to make amends. The determination to “be right” can get the best of many people and trigger costly claims. Even meritless claims may consume thousands of dollars in legal fees and hundreds of man-hours to defend.

    • Coverage Issues

    It is important to note that some cooperation clauses could negate coverage if an insured admits liability. Many policies contain the following cooperation language which might be triggered in the event an apology is looked at as and admission of liability:

    The Insured, except at his/her own cost and for his/her own account, shall not, without written consent of the Company, make any payment, admit any liability, settle any claim, assume any obligation or incur any expense. The Company shall have the right, but not duty, to appeal any judgment.

    Understanding language that might give rise to a coverage concern should be addressed prior to instituting any apology program. Effective collaboration between insured and insurer can help avoid policy issues before they occur.  (See the discussion in Does Medical Error Disclosure Violate the Medical Malpractice Insurance Cooperation Clause?).

    Some Additional Thoughts

    Even if an apology did not take place immediately after the incident, if the matter proceeds to litigation a mediation can also be an effective time to apologize. The general principal that things said at a mediation cannot be used at trial protects all from any statements which might be misconstrued or used against an insured at trial. When attending a mediation, make sure to choose the corporate representative who will apologize wisely. A flip apology from a person who is far removed from the event may do more harm than good.

    As Kevin Quinley stated so well:

    In the 1960s tearjerker movie and novel, “Love Story,” the tag-line was, “Love means never having to say you’re sorry.”

    That may be true in love but it may not be true in risk management. In certain circumstances and situations, apologies may be legitimate risk management tools not only to retain valued customers, but to forestall expensive and time-sucking litigation.

    Do you think that using an apology can reduce costs in every case? When might it be a problem?

    Med Mal Update: Reasons for decrease in frequency and recent Illinois court decision to strike down damage caps

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    In response to my post, medical malpractice report shows increased severity despite lower frequency, I received a number of LinkedIn comments that I felt offered an interesting perspective on this topic. I have included some of that discussion below.

    Additionally below, I review the news that the Illinois Supreme Court has struck down that state’s damage caps. The overturning of limits on non-economic loss will most certainly have repercussions for anyone involved in malpractice claims.

    Tort reform and high cost to bring medical malpractice actions are seen as main reasons for lower frequency

    An interesting discussion on the LinkedIn Medical Professional Group discussion board developed in response to my post on the increase in severity, but decrease in frequency, in medical malpractice suits. Generally, many in the industry commented that the high cost to bring a medical malpractice actions has swayed the plaintiff’s bar to file fewer claims. With other types of cases easier to prosecute, and cheaper to file, plaintiff’s attorneys can get a higher return on their investment by taking on other types of claims. Michael Snyder, a medical malpractice defense attorney in California, noted that “the cap on general damages has not increased [in California] since MICRA was enacted in the seventies. At the same time the cost for both prosecuting and defending these cases increased, so that most plaintiff’s attorney  “will only take cases where there are substantial special damage.”

    Pat Tazzara, Litigation Attorney in Washington D.C., has seen a shift in jury attitudes against plaintiff’s attorneys bringing actions. “Once the prevailing theme was hostility [and] skepticism towards health care providers generally. Now, the focus is much more on skepticism towards plaintiffs bringing a law suit [or] suing their doctor.” Pat also feels that there there is a “shift in societal attitudes about those who sue.” This statement was also echoed by malpractice insurance expert, Peter Reilly, who added that “the plaintiff’s bar is wiser about what action it will bring against a medical provider.”

    Consulting Actuary, Christopher Tait, points to Tort Reform in Pennsylvania as a main reason for lower frequency and severity. Pennsylvania adopted a Certificate of Merit procedure requiring plaintiff’s attorneys to secure a written statement of malpractice from a qualified expert prior to bringing suit. In addition, the state eliminated “venue shopping” which decreased the number of claims being brought in “bad” forums such a Philadelphia. Again, this created a value proposition for the plaintiff who had to ask themselves if it is worth having to spend money to bring an action where verdicts could be lower.

    The costs to defend these claims is also rising as was again made clear in the Ohio Insurance Department’s annual report Medical Professional Liability Closed Claim Report. In this study it was shown that the average defense costs almost doubled from 2005 to 2008 from $24,443 to $42,249. Bottom line: These are expensive cases for everyone and costs for bringing or defending these claims continue to rise. Clearly, this is having some impact on the plaintiff’s bar.

    Illinois strikes down damage caps on Medical Malpractice claims

    In upholding a Cook County decision from 2007, the Illinois high court ruled that limits on pain and suffering and non-economic damages are unconstitutional. Based upon the State Constitution’s separation of powers clause, the judges struck the caps by holding that lawmakers were interfering the rights of juries to determine damages. (see ruling in Lebron, a Minor v. Gottlieb Memorial Hospital)

    The Illinois Hospital Association said it best in their statement:

    The hospital community is deeply concerned that this decision will renew the malpractice lawsuit crisis and make it more difficult for Illinoisans to access or afford health care as liability costs for physicians and hospitals are driven to unsustainable levels. Hospitals across the state will again face even greater challenges recruiting and retaining physicians, especially specialists such as neurosurgeons and obstetricians, who were leaving Illinois during the height of the crisis.

    The Illinois Supreme Court has faced this decision before and has struck down similar laws in both 1976 and 1997.  Whether the legislature will try again is unknown at this time.

    What do you think? Join in the conversation. Post your comments, questions, observations, thoughts, suggestions, musings, ideas for future topics, or other feedback. Or email me directly.

    Medical Malpractice report shows increased severity despite lower frequency

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    The Insurance Information Institute has just released a comprehensive look at Medical Malpractice outlining recent developments and industry trends (read more at Medical Malpractice: The Topic). This article breaks down the industry by looking at, among other things, market conditions and national developments.

    Key highlights include

    • Damage caps can save $54 Billion in medical costs by reducing premiums by about 10%
    • Fewer claims are being filed as a result of tort reform, improved patient safety initiatives and better risk management
    • Claim values, despite decrease in volume, continue to rise
    • Tort costs for medical malpractice claims are greater than other types of tort claims
    • Defense and cost containment expenses rose in 2008 to 58.1% of incurred loss, up from 55.1%
    • Defensive medicine accounts for 10% of medical care costs

    It appears that tort reform measures work to decrease premiums and alleviate the high cost of Malpractice on medical costs.