This just in: you'll get sued eventually.
A just-released AMA study has revealed that more than 42% of physicians across all specialties has at some time been sued for malpractice, and more than 20% have been sued two or more times. Based on a 2007-2008 survey of a statistically valid sample (5285 physicians from 42 specialties randomly selected from the AMA physician masterfile) the survey asked whether the physician had ever been sued, and whether they had been named in a suit in the past year. The survey was jointly sponsored by the AMA, CMS, and 40 specialty societies, including ACEP.
Overall, 95 claims were reported ever filed for each 100 physicians, with approximately five physicians out of every 100 reporting claims in the preceding year. There was remarkable variability in the suit frequency between specialties, as well as age and gender disparities.
Surgeons and ObGyns experienced twice the overall average claims rate, followed closely by surgical subspecialists. Emergency physicians ranked fifth in claims frequency, just below radiologists, at 109 claims per 100 physicians. The lowest claims rates were experienced by psychiatrists and pediatricians.
Emergency physicians experienced an 8.7% claims rate in the year covered by the study. If this year was representative, this could approximate our annual claims rate.
All absolute claims numbers rose in proportion to physician age, no doubt reflecting career patient exposure. Across all specialties, 60.5% of physicians over 55 reported having been sued, 39.2% multiple times. Nearly half (49.8%) of emergency physicians of all ages reported experiencing at least one claim, and 30.9% had two or more. Over 75% of emergency physicians over age 55 had experienced claims.
While only 16% of emergency physicians under the age of 40 had experienced claims, over half of ObGyns in that age range had been sued.
Forty seven percent of male physicians had experienced one claim, while 26.3% had more than one, compared with 23.9% and 9.4% respectively for women physicians. Similar proportions prevailed when physicians of similar ages were compared. However, it was noted that male physicians worked more hours, were more represented in high claims specialties and were more likely to be practice owners, which factors likely contribute to higher overall claims experience.
Using PIAA aggregate claims data (Physicians Insurers Association of America members insure 60% of physicians nationwide) for 2008, the AMA noted that overall, 65% of claims were dropped, 30% settled or resolved using alternate methods, and only 5% of claims were brought to trial. Of those tried, 90% drew defense verdicts. Median indemnity payments for settled claims were $200,000 and for tried claims $375,000.
For emergency department generated claims (not limited to claims against emergency physicians), a recent Johns Hopkins study using PIAA closed claims data showed that 64% of claims are closed without payment, 29% closed via settlement, 7% are tried to verdict, with 85% adjudicated in favor of the physician. Average indemnity payment against emergency physicians from 1985-2007, adjusted for inflation, was $185,226 (settled claims $175,545 and adjudicated claims $393,350). This study also demonstrated that although overall claims as well as paid claims have trended downward from 1985 to 2007, the average indemnity payment as well as expenses per claim have steadily increased.
Diagnostic errors were the most prevalent type of error resulting in litigation from ED care of adults (over 50%) in the Hopkins study, the most common conditions being AMI, appendicitis, and fractures. These findings mirror previous studies.
The AMA study is probably the most accurate study to date shedding light on the question of how often physicians are sued, but it has not been peer reviewed for possible confounders. The Hopkins study looked at insurance data from a subset of physician insurers, and parts of the data are not specific to emergency physicians but to ED generated cases involving adult care.
Because much of this information has previously not been studied, or has been kept well guarded by insurers, it is a welcome source of information and guidance to emergency physicians who may over-or-underestimate their liability exposure or ability to successfully defend against malpractice claims.
ACEP’s Medical Legal Committee has just completed a survey of all members on their lifetime medical-legal experiences, the first undertaking of this kind among College members. Data will be forthcoming in future months from ACEP.
U.S. based readers of EPM are invited to compare their experience with that of the physicians in the AMA survey. These results will be published in a future EPM.
Dr. Andrew is a trial consultant and litigation stress counselor. Her website is www.mdmentor.com
1. Kane, CK, Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians, AMA Center for Economics and Health Policy Research, Aug 2010, accessed at http://www.ama-assn.org/ama1/pub/upload/mm/363/prp-201001-claim-freq.pdf accessed Aug. 5 2010
2. Brown TW, McCarthy ML, Kelen GD et al. An epidemiologic study of closed emergency department malpractice claims in a national database of physician malpractice insurers, Acad. Emerg. Med 2010 17:553-60.