Claims & Litigation
Surgical malpractice claims in the United States By Nicole Tin-Lok Jiam, BA, Michol A. Cooper, MD, PhD, Heather G. Lyu, BA, Kenzo Hirose, MD, and Martin A. Makary, MD, MPH
Despite ongoing reform, there is still significant physician concern regarding the impact of medical claims on their practices. It is important that physicians and healthcare risk management professionals have a good understanding of the outcomes of medical malpractice to participate in its restructuring as needed and to prevent potentially harmful practices. In our study, we reviewed National Practitioner Data Bank (NPDB) paid malpractice claim reports from September 1, 1990, through July 30, 2011, and identified the 10 most common surgery-related allegations against physicians, excluding those listed as unspecified. Data were collected on the number of claims, the cost of the claims, and physician and patient characteristics.
I N TR O D U C TI O N Medical malpractice is one of the most important issues in medical care today. Studies have shown that 75% to 99% of practicing physicians will be threatened by a lawsuit over the course of their career.1 Unfortunately, physician concerns over the consequences of medical malpractice lawsuits have detrimental psychosocial effects, mentally and behaviorally. In a 2005 study, 93% of physicians reported practicing defensive medicine.2 This term is used to describe medical decisions driven by liability avoidance rather than in the patient’s interest.3 In addition to higher medical costs, defensive medicine can lead to unnecessary tests and surgical procedures with the potential for patient harm. Thus, it is important for physicians and healthcare risk management professionals to have a good understanding of the outcomes of medical malpractice so that they can participate in medical reforms as needed and prevent potentially harmful practices. Our goal was to describe the malpractice payments related to surgery and the most common allegations that are surgically related. A recent study of 40 916 physicians covered by large professional liability insurers from 1991 to 2005 found that 7.4% of physicians per year had a malpractice claim against them, with 1.6% of those leading to a paid claim. They also found that by age 65, 75% of physicians in low-risk specialties and 99% of physicians in high-risk specialties had faced a malpractice claim with payouts in 19% and 71% of claims, respectively. However, of these claims, only 1% were greater than $1 million.1 Additionally, through 2004, the increase in the cost of medical malpractice claims was only 4% per year, which is in keeping with the overall © 2014 American Society for Healthcare Risk Management of the American Hospital Association Published online in Wiley Online Library (wileyonlinelibrary.com) • DOI: 10.1002/jhrm.21140 AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
29
Table 1: Number of Claims Within Each Injury Category for the Top 10 Claims in the NPDB in Order of Highest to Lowest Number of Claims Allegation Improper Performance Improper Technique Failure to Recognize a Complication Retained Foreign Body Improper Management Unnecessary Procedure Wrong Body Part Failure to Obtain Consent/Lack of Informed Consent Failure to Perform Procedure Delay in Performance Total
Total Paid Claims 10 937 2009 1707 1266 1070 819 683 615
Permanent Injury 6734 1314 1219 241 792 581 299 393
Temporary Injury 3977 649 478 949 263 207 307 182
Emotional Injury 226 46 10 76 15 31 77 40
Percent Taken to Court (%) 4 5 4 4 4 5 3 8
468 299 19 873
285 259 12 117
164 38 7214
19 2 542
5 5
increase in the cost of medical care in the United States.4 Still, many physicians worry about the consequence of medical claims with regards to their practice. To evaluate the impact of medical malpractice, multiple databases have been used, including physicians covered by large professional liability insurers, risk management offices, and the National Practitioner Data Bank (NPDB).1,2,5 One of the largest databases of medical malpractice claims is the NPDB. This database was established by Congress as part of the Health Care Quality Improvement Act of 1986. As part of this act, all malpractice payments made on behalf of a licensed provider must be reported to the NPDB within 30 days.6 The database contains information on the total malpractice payouts, the types of claims, and physician and patient characteristics. Further research needs to be done to evaluate the overall impact of malpractice claims and the characteristics of the claims. We designed a study to determine the top 10 claims in the NPDB and to evaluate the number of claims and payouts, as well as physician and patient characteristics.
ME T HODS We reviewed NPDB paid malpractice claim reports from September 1, 1990, through July 30, 2011. Data were collected on the 10 most common procedure-related allegations in the NPDB, excluding those that were listed as unspecified. The event was included only if it was listed as the first or second allegation of the paid malpractice claim report. We excluded payments that were linked to dentists, pharmacists, social workers, or nurses. For each malpractice report, data were collected on the year of 30
occurrence, patient age, clinical outcome, amount of malpractice payout, inpatient or outpatient status, and physician years in practice. The malpractice payouts were inflationadjusted to the 2012 US dollar using the consumer price index. For allegations after 2004, data were collected on patient age and patient gender; prior to 2004, these data are not available in the NPDB.
R E S U LTS The 10 most common allegations in the NPDB were improper performance, improper technique, failure to recognize a complication, retained foreign body, improper management, unnecessary procedure, wrong body part, failure to obtain consent/lack of consent, failure to perform a procedure, and delay in performance, in that order. The total number of paid claims from these allegations is 19 473. The number of allegations causing permanent, temporary, and emotional injury for each allegation category can be seen in Table 1. Of these, 61% (12 117) were for permanent injury, 36% (7214) were for temporary injury, and 3% (542) were for emotional injury. All of the cases in the NPDB database were paid, but greater than 90% were settled out of court. Failure to obtain consent/lack of consent was the most common claim to be settled in court. The total inflation-adjusted payout for the top 10 allegations is $5 866 435 277, with an average payout of $301 259 per claim. Per year, this totals $266 656 149. The maximum total and average payout for these claims occurred in 2004. Since 2009, the average payouts have been continuously decreasing (Figure 1). Overall, there was a 26% decrease in average malpractice claim payouts
JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
DOI: 10.1002/jhrm
Figure 1: Average Yearly Payout Between 1990 and 2011 in Inflation-Adjusted Dollars
from 2004 to 2010 of $316 411 to $233 474. The highest total payout was for improper performance. The lowest total payout was for wrong body part. By injury type, the total payouts are $4 717 009 542 for permanent injury, $1 118 765 668 for temporary injury, and $30 660 067 for emotional injury. The patients with permanent injury represent the greatest burden, with the payouts for permanent injury representing greater than 70% of total payouts. The average payout per patient for each allegation type can be seen in Table 2. For every allegation group, physicians in practice for 20 to 29 years had the most claims. Those in practice for 10 to 19 and 30 to 39 years had the second most claims in different categories. For all physician years in practice groups, the most common allegation type was improper performance. For all allegation groups, those with less than 10 years in practice had the lowest number of claims. For every allegation group, patients 40 to 49 filed the most claims. Patients 50 to 59 filed the second most claims in every category except for unnecessary procedure, failure to obtain consent/lack of consent, and failure to perform procedure. In those categories, patients age 30
DOI: 10.1002/jhrm
to 39 filed the most claims. In every allegation group, patients aged 90 and greater filed the least claims. For every allegation group, inpatients filed the most claims. Similarly, for every allegation group, women filed the most claims.
DISCUSSION Since the start of mandatory reporting of medical claim payouts in the NPDB, the top 10 procedure-related allegations in the database have led to 19 473 claims. The most common claims were for improper performance, improper technique, and failure to recognize a complication. Additionally, 2 of the top 10 procedure-related allegations were for “never events,” despite national efforts to decrease them. These were retained foreign body, which is the fourth most common allegation, and wrong body part, which is the seventh most common allegation. Interestingly, the average payout for wrong body part is the second lowest in the top 10 allegations, and retained foreign body is the lowest. There is wide agreement through the medical community that never events are avoidable, and Medicare along with several states have announced that hospitals will be penalized for such
AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
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Table 2: Inflation-Adjusted Average Cash Payouts per Patient for the Top 10 Claims in the NPBD in Order of Highest to Lowest Average Payout
Allegation Delay in Performance Improper Performance Failure to Recognize a Complication Improper Technique Failure to Perform Procedure Unnecessary Procedure Improper Management Failure to Obtain Consent/Lack of Informed Consent Wrong Body Part Retained Foreign Body
Permanent Injury 427 428 411 829 409 713 397 500 386 851 366 431 352 627 305 295
Payout per Patient ($) Temporary Injury 198 578 207 613 215 232 159 855 131 559 181 081 199 737 117 938
Emotional Injury 18 603 63 395 40 955 53 623 56 251 87 472 98 948 88 445
262 656 204 054
84 921 76 663
37 210 34 622
events.7–16 It is important for patient safety, overall cost of medical care, and malpractice reform that hospitals take measures to prevent these events from ever happening. Of the physicians who were sued, those in practice less than 10 years had the least number of claims, and those in practice 20 to 29 years had the highest number of claims. A previous study of 1813 NICU physicians found that physicians with less than 10 years in practice were less likely to be sued than those in practice for greater than 15 years.17 Although younger physicians have less experience, they are often overseen by more senior physicians, which may be why they have lower rates of claims. Additionally, physicians in practice 20 to 29 years are in their busiest clinical years, and they are usually working autonomously, which likely accounts for their high number of claims. The total inflation-adjusted payout for the allegations is $5 866 435 277 over 20 years. Per year, this totals $266 656 149. With a Medicare budget of $506 billion in 2012, the amount of money spent on these claims is less than 0.05% of the Medicare budget.18 Additionally, since their peak in 2004, the total payouts for claims have decreased steadily, with a 33% decrease between 2004 and 2010. Previous studies have also shown that malpractice payments as a fraction of national health care spending have not increased significantly over time.19 However, despite the small financial cost of the claims themselves, the claims can have a significant impact on the way that physicians practice. In a survey of 824 physicians in Pennsylvania, 93% reported practicing defensive medicine due to fear of malpractice claims. They also found that 42% of specialists had restricted their practices, and 50% said that they were likely to continue to restrict their practices in the current environment.2 Additionally, studies
32
have shown that malpractice reforms are associated with an increase in physician supply.20,21 Finally, although the overall impact is small, it has been shown that reforms associated with damage caps do significantly decrease malpractice payouts.22 However, reform leading to caps on payouts for damages in malpractice cases applies only to jury verdicts. In our study, we found that 90% of claims in all categories were settled out of court, which is consistent with previous studies.4,23,24 The cost of litigation in medical malpractice is between $76 billion and $126 billion per year.17 Moreover, only 28 cents of every dollar reaches the plaintiff, with the rest being used for legislative and administrative fees.17,25 This has resulted in a concerted effort to settle more cases out of court. A review paper found that early apology and disclosure programs report 50% to 67% success in avoiding litigation as well as substantial reduction in the amount paid per claim. Furthermore, once a claim has been filed, mediation has 75% to 90% success in avoiding litigation, with a cost savings of $50 000 per claim and 90% satisfaction among both plaintiffs and defendants.26 The purpose of this study was to identify the top 10 malpractice allegations related to surgery and surgical malpractice symptoms. More and more, physicians are employing defensive medicine in their practice in fear of medical lawsuits. Unfortunately, unnecessary tests and procedures can increase financial burden for patients as well as opportunities for patient harm. Understanding the characteristics of malpractice claims and its outcome can help physicians and healthcare risk management professionals restructure as needed, adopt policies to promote patient safety, and alleviate physician concerns on the financial impact of medical payouts.
JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
DOI: 10.1002/jhrm
RE FE REN C ES 1. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629–636. 2. Studdert DM, Mello MM, Sage WM, DesRoches CM, Peugh J, Zapert K, Brennan TA. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609–2617. 3. Anderson RE. Billions for defense: the pervasive nature of defensive medicine. Arch Intern Med. 1999;159(20):2399–2402. 4. Chandra A, Shantanu N, Seabury S. The growth of physician medical malpractice payments: evidence from the National Practitioner Database. Health Aff. 2005. doi: 10.1377/hlthaff.w5.240.
14. West JC. Surgical “never events”: how common are adverse occurrences? J Healthc Risk Manage. 2006;26:15–22. 15. Cima RR, Kollengode A, Garnatz J, Storsveen A, Weisbrod C, Deschamps C. Incidence and characteristics of potential and actual retained foreign object events in surgical patients. J Am Coll Surg. 2008;207:80–87. 16. CMS improves patient safety for Medicare and Medicaid by addressing never events. Center for Medicaid and Medicare Services website. http://www .cms.gov/QualityInitiativesGenInfo. Accessed October 20, 2009. 17. Weinstein SL. Medical liability reform crisis 2008. Clin Orthop Relat Res. 2009;467:392–401.
5. Stewart RM, Geoghegan K, Myers JG, et al. Malpractice risk and cost are significantly reduced after tort reform. J Am Coll Surg. 2011;212(4):463– 467.
18. Prior years’ performance & budget submissions. Centers for Medicare & Medicaid Services website. http://www.cms.gov/About-CMS/Agency -Information/PerformanceBudget/Prior_Years _Performance_and_Budget_Submissions.html. Accessed October 12, 2012.
6. The National Practitioner Data Bank. Department of Health and Human Services HRSA website. www .npdb.hrsa.gov/topNavigation/aboutUs.jsp. Accessed October 12, 2012.
19. Chandra Black B, Silver C, Hyman D, Sage W. Stability, not crisis: medical malpractice claim outcomes in Texans, 1988–2002. J Empir Leg Stud 2005;2:207–259.
7. Meadow W, Bell A, Lantos J. Physicians’ experience with allegations of medical malpractice in the neonatal intensive care unit. Pediatrics. 1997;99(5):E10.
20. Kessler DP, Sage WM, Becker DJ. Impact of malpractice reforms on the supply of physician services. JAMA. 2005;293(21):2618–2625.
8. Stahel PF, Sabel AL, Victoroff MS, et al. Wrong-site and wrong-patient procedures in the universal protocol era: analysis of a prospective database of physician selfreported occurrences. Arch Surg. 2010;145:978–984.
21. Hellinger FJ, Encinosa WE. The impact of state laws limiting malpractice awards on the geographic distribution of physicians. Rockville, MD: Agency for Healthcare Research and Quality; 2003.
9. Michaels RK, Makary MA, Dahab Y, et al. Achieving the National Quality Forum’s “never events”: prevention of wrong site, wrong procedure, and wrong patient operations. Ann Surg. 2007;245:526–532.
22. Guirguis-Blake J, Fryer GE, Phillips RL Jr, Szabat R, Green LA. The US medical liability system: evidence for legislative reform. Ann Fam Med. 2006;4(3):240– 246.
10. Seiden SC, Barach P. Wrong-side/wrong-site, wrongprocedure, and wrong-patient adverse events: are they preventable? Arch Surg. 2006;141:931–939.
23. Vidmar N. Medical malpractice and the tort system in Illinois: A report to the Illinois State Bar Association. Durham, NC: Duke University; 2005.
11. Greenberg CC, Gawande AA. Retained foreign bodies. Adv Surg. 2008;42:183–191.
24. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629–636.
12. Gawande AA, Studdert DM, Orav EJ, Brennan TA, Zinner MJ. Risk factors for retained instruments and sponges after surgery. N Engl J Med. 2003;348:229– 235.
25. Pate R, Hunter D. Code blue: The case for serious state medical liability reform. Washington, DC: Heritage Foundation; 2006.
13. Lincourt AE, Harrell A, Cristiano J, Sechrist C, Kercher K, Heniford BT. Retained foreign bodies after surgery. J Surg Res. 2007;138:170–174.
26. Sohn DH, Bal BS. Medical malpractice reform: the role of alternative dispute resolution. Clin Orthop Relat Res. 2012;470(5):1370–1378.
DOI: 10.1002/jhrm
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ABOUT TH E AU TH ORS Nicole Tin-Lok Jiam, BA, is a medical school student at Johns Hopkins University School of Medicine. She received her BA in neuroscience, with a minor in entrepreneurship and management, at Johns Hopkins University. She is the board chair of two 501(c)(3) organizations and a 2013–2014 Albert Schweitzer fellow. Michol A. Cooper, MD, PhD, is a general surgery resident at the Johns Hopkins Hospital. She received her MD at the University of Cincinnati and her PhD in biomedical engineering at the University of Michigan. Her research focus is on pancreatic cancer, and she is an emerging leader in patient safety. Heather G. Lyu, BA, is a medical school student at Johns Hopkins University School of Medicine. She received her BA in media studies at the University of Virginia. She was a research fellow in the predoctoral research
34
program for medical students. Kenzo Hirose, MD, is an assistant professor of surgery and general surgeon at the Johns Hopkins Hospital, specializing in hepatopancreatobiliary surgery with an interest in benign and malignant conditions of the liver, bile duct, and pancreas. He received his medical education training at Harvard Medical School and general surgery residency at the University of California–San Francisco. Martin A. Makary, MD, MPH, is chief of minimally invasive pancreaticobiliary surgery and surgical director of the Johns Hopkins Pancreas Multidisciplinary Cancer Clinic. As a general surgeon, he has pioneered new pancreas operations at Johns Hopkins and nationally, such as laparoscopic pancreatectomy with laparoscopic islet autotransplantation to preserve insulin production and laparoscopic spleen-preserving surgery. He received his MD at Thomas Jefferson University and MPH at the Harvard School of Public Health.
JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
DOI: 10.1002/jhrm
Surgical malpractice claims in the United States By Nicole Tin-Lok Jiam, BA, Michol A. Cooper, MD, PhD, Heather G. Lyu, BA, Kenzo Hirose, MD, and Martin A. Makary, MD, MPH
Despite ongoing reform, there is still significant physician concern regarding the impact of medical claims on their practices. It is important that physicians and healthcare risk management professionals have a good understanding of the outcomes of medical malpractice to participate in its restructuring as needed and to prevent potentially harmful practices. In our study, we reviewed National Practitioner Data Bank (NPDB) paid malpractice claim reports from September 1, 1990, through July 30, 2011, and identified the 10 most common surgery-related allegations against physicians, excluding those listed as unspecified. Data were collected on the number of claims, the cost of the claims, and physician and patient characteristics.
I N TR O D U C TI O N Medical malpractice is one of the most important issues in medical care today. Studies have shown that 75% to 99% of practicing physicians will be threatened by a lawsuit over the course of their career.1 Unfortunately, physician concerns over the consequences of medical malpractice lawsuits have detrimental psychosocial effects, mentally and behaviorally. In a 2005 study, 93% of physicians reported practicing defensive medicine.2 This term is used to describe medical decisions driven by liability avoidance rather than in the patient’s interest.3 In addition to higher medical costs, defensive medicine can lead to unnecessary tests and surgical procedures with the potential for patient harm. Thus, it is important for physicians and healthcare risk management professionals to have a good understanding of the outcomes of medical malpractice so that they can participate in medical reforms as needed and prevent potentially harmful practices. Our goal was to describe the malpractice payments related to surgery and the most common allegations that are surgically related. A recent study of 40 916 physicians covered by large professional liability insurers from 1991 to 2005 found that 7.4% of physicians per year had a malpractice claim against them, with 1.6% of those leading to a paid claim. They also found that by age 65, 75% of physicians in low-risk specialties and 99% of physicians in high-risk specialties had faced a malpractice claim with payouts in 19% and 71% of claims, respectively. However, of these claims, only 1% were greater than $1 million.1 Additionally, through 2004, the increase in the cost of medical malpractice claims was only 4% per year, which is in keeping with the overall © 2014 American Society for Healthcare Risk Management of the American Hospital Association Published online in Wiley Online Library (wileyonlinelibrary.com) • DOI: 10.1002/jhrm.21140 AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
29
Table 1: Number of Claims Within Each Injury Category for the Top 10 Claims in the NPDB in Order of Highest to Lowest Number of Claims Allegation Improper Performance Improper Technique Failure to Recognize a Complication Retained Foreign Body Improper Management Unnecessary Procedure Wrong Body Part Failure to Obtain Consent/Lack of Informed Consent Failure to Perform Procedure Delay in Performance Total
Total Paid Claims 10 937 2009 1707 1266 1070 819 683 615
Permanent Injury 6734 1314 1219 241 792 581 299 393
Temporary Injury 3977 649 478 949 263 207 307 182
Emotional Injury 226 46 10 76 15 31 77 40
Percent Taken to Court (%) 4 5 4 4 4 5 3 8
468 299 19 873
285 259 12 117
164 38 7214
19 2 542
5 5
increase in the cost of medical care in the United States.4 Still, many physicians worry about the consequence of medical claims with regards to their practice. To evaluate the impact of medical malpractice, multiple databases have been used, including physicians covered by large professional liability insurers, risk management offices, and the National Practitioner Data Bank (NPDB).1,2,5 One of the largest databases of medical malpractice claims is the NPDB. This database was established by Congress as part of the Health Care Quality Improvement Act of 1986. As part of this act, all malpractice payments made on behalf of a licensed provider must be reported to the NPDB within 30 days.6 The database contains information on the total malpractice payouts, the types of claims, and physician and patient characteristics. Further research needs to be done to evaluate the overall impact of malpractice claims and the characteristics of the claims. We designed a study to determine the top 10 claims in the NPDB and to evaluate the number of claims and payouts, as well as physician and patient characteristics.
ME T HODS We reviewed NPDB paid malpractice claim reports from September 1, 1990, through July 30, 2011. Data were collected on the 10 most common procedure-related allegations in the NPDB, excluding those that were listed as unspecified. The event was included only if it was listed as the first or second allegation of the paid malpractice claim report. We excluded payments that were linked to dentists, pharmacists, social workers, or nurses. For each malpractice report, data were collected on the year of 30
occurrence, patient age, clinical outcome, amount of malpractice payout, inpatient or outpatient status, and physician years in practice. The malpractice payouts were inflationadjusted to the 2012 US dollar using the consumer price index. For allegations after 2004, data were collected on patient age and patient gender; prior to 2004, these data are not available in the NPDB.
R E S U LTS The 10 most common allegations in the NPDB were improper performance, improper technique, failure to recognize a complication, retained foreign body, improper management, unnecessary procedure, wrong body part, failure to obtain consent/lack of consent, failure to perform a procedure, and delay in performance, in that order. The total number of paid claims from these allegations is 19 473. The number of allegations causing permanent, temporary, and emotional injury for each allegation category can be seen in Table 1. Of these, 61% (12 117) were for permanent injury, 36% (7214) were for temporary injury, and 3% (542) were for emotional injury. All of the cases in the NPDB database were paid, but greater than 90% were settled out of court. Failure to obtain consent/lack of consent was the most common claim to be settled in court. The total inflation-adjusted payout for the top 10 allegations is $5 866 435 277, with an average payout of $301 259 per claim. Per year, this totals $266 656 149. The maximum total and average payout for these claims occurred in 2004. Since 2009, the average payouts have been continuously decreasing (Figure 1). Overall, there was a 26% decrease in average malpractice claim payouts
JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
DOI: 10.1002/jhrm
Figure 1: Average Yearly Payout Between 1990 and 2011 in Inflation-Adjusted Dollars
from 2004 to 2010 of $316 411 to $233 474. The highest total payout was for improper performance. The lowest total payout was for wrong body part. By injury type, the total payouts are $4 717 009 542 for permanent injury, $1 118 765 668 for temporary injury, and $30 660 067 for emotional injury. The patients with permanent injury represent the greatest burden, with the payouts for permanent injury representing greater than 70% of total payouts. The average payout per patient for each allegation type can be seen in Table 2. For every allegation group, physicians in practice for 20 to 29 years had the most claims. Those in practice for 10 to 19 and 30 to 39 years had the second most claims in different categories. For all physician years in practice groups, the most common allegation type was improper performance. For all allegation groups, those with less than 10 years in practice had the lowest number of claims. For every allegation group, patients 40 to 49 filed the most claims. Patients 50 to 59 filed the second most claims in every category except for unnecessary procedure, failure to obtain consent/lack of consent, and failure to perform procedure. In those categories, patients age 30
DOI: 10.1002/jhrm
to 39 filed the most claims. In every allegation group, patients aged 90 and greater filed the least claims. For every allegation group, inpatients filed the most claims. Similarly, for every allegation group, women filed the most claims.
DISCUSSION Since the start of mandatory reporting of medical claim payouts in the NPDB, the top 10 procedure-related allegations in the database have led to 19 473 claims. The most common claims were for improper performance, improper technique, and failure to recognize a complication. Additionally, 2 of the top 10 procedure-related allegations were for “never events,” despite national efforts to decrease them. These were retained foreign body, which is the fourth most common allegation, and wrong body part, which is the seventh most common allegation. Interestingly, the average payout for wrong body part is the second lowest in the top 10 allegations, and retained foreign body is the lowest. There is wide agreement through the medical community that never events are avoidable, and Medicare along with several states have announced that hospitals will be penalized for such
AMERICAN SOCIETY FOR HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
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Table 2: Inflation-Adjusted Average Cash Payouts per Patient for the Top 10 Claims in the NPBD in Order of Highest to Lowest Average Payout
Allegation Delay in Performance Improper Performance Failure to Recognize a Complication Improper Technique Failure to Perform Procedure Unnecessary Procedure Improper Management Failure to Obtain Consent/Lack of Informed Consent Wrong Body Part Retained Foreign Body
Permanent Injury 427 428 411 829 409 713 397 500 386 851 366 431 352 627 305 295
Payout per Patient ($) Temporary Injury 198 578 207 613 215 232 159 855 131 559 181 081 199 737 117 938
Emotional Injury 18 603 63 395 40 955 53 623 56 251 87 472 98 948 88 445
262 656 204 054
84 921 76 663
37 210 34 622
events.7–16 It is important for patient safety, overall cost of medical care, and malpractice reform that hospitals take measures to prevent these events from ever happening. Of the physicians who were sued, those in practice less than 10 years had the least number of claims, and those in practice 20 to 29 years had the highest number of claims. A previous study of 1813 NICU physicians found that physicians with less than 10 years in practice were less likely to be sued than those in practice for greater than 15 years.17 Although younger physicians have less experience, they are often overseen by more senior physicians, which may be why they have lower rates of claims. Additionally, physicians in practice 20 to 29 years are in their busiest clinical years, and they are usually working autonomously, which likely accounts for their high number of claims. The total inflation-adjusted payout for the allegations is $5 866 435 277 over 20 years. Per year, this totals $266 656 149. With a Medicare budget of $506 billion in 2012, the amount of money spent on these claims is less than 0.05% of the Medicare budget.18 Additionally, since their peak in 2004, the total payouts for claims have decreased steadily, with a 33% decrease between 2004 and 2010. Previous studies have also shown that malpractice payments as a fraction of national health care spending have not increased significantly over time.19 However, despite the small financial cost of the claims themselves, the claims can have a significant impact on the way that physicians practice. In a survey of 824 physicians in Pennsylvania, 93% reported practicing defensive medicine due to fear of malpractice claims. They also found that 42% of specialists had restricted their practices, and 50% said that they were likely to continue to restrict their practices in the current environment.2 Additionally, studies
32
have shown that malpractice reforms are associated with an increase in physician supply.20,21 Finally, although the overall impact is small, it has been shown that reforms associated with damage caps do significantly decrease malpractice payouts.22 However, reform leading to caps on payouts for damages in malpractice cases applies only to jury verdicts. In our study, we found that 90% of claims in all categories were settled out of court, which is consistent with previous studies.4,23,24 The cost of litigation in medical malpractice is between $76 billion and $126 billion per year.17 Moreover, only 28 cents of every dollar reaches the plaintiff, with the rest being used for legislative and administrative fees.17,25 This has resulted in a concerted effort to settle more cases out of court. A review paper found that early apology and disclosure programs report 50% to 67% success in avoiding litigation as well as substantial reduction in the amount paid per claim. Furthermore, once a claim has been filed, mediation has 75% to 90% success in avoiding litigation, with a cost savings of $50 000 per claim and 90% satisfaction among both plaintiffs and defendants.26 The purpose of this study was to identify the top 10 malpractice allegations related to surgery and surgical malpractice symptoms. More and more, physicians are employing defensive medicine in their practice in fear of medical lawsuits. Unfortunately, unnecessary tests and procedures can increase financial burden for patients as well as opportunities for patient harm. Understanding the characteristics of malpractice claims and its outcome can help physicians and healthcare risk management professionals restructure as needed, adopt policies to promote patient safety, and alleviate physician concerns on the financial impact of medical payouts.
JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
DOI: 10.1002/jhrm
RE FE REN C ES 1. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629–636. 2. Studdert DM, Mello MM, Sage WM, DesRoches CM, Peugh J, Zapert K, Brennan TA. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609–2617. 3. Anderson RE. Billions for defense: the pervasive nature of defensive medicine. Arch Intern Med. 1999;159(20):2399–2402. 4. Chandra A, Shantanu N, Seabury S. The growth of physician medical malpractice payments: evidence from the National Practitioner Database. Health Aff. 2005. doi: 10.1377/hlthaff.w5.240.
14. West JC. Surgical “never events”: how common are adverse occurrences? J Healthc Risk Manage. 2006;26:15–22. 15. Cima RR, Kollengode A, Garnatz J, Storsveen A, Weisbrod C, Deschamps C. Incidence and characteristics of potential and actual retained foreign object events in surgical patients. J Am Coll Surg. 2008;207:80–87. 16. CMS improves patient safety for Medicare and Medicaid by addressing never events. Center for Medicaid and Medicare Services website. http://www .cms.gov/QualityInitiativesGenInfo. Accessed October 20, 2009. 17. Weinstein SL. Medical liability reform crisis 2008. Clin Orthop Relat Res. 2009;467:392–401.
5. Stewart RM, Geoghegan K, Myers JG, et al. Malpractice risk and cost are significantly reduced after tort reform. J Am Coll Surg. 2011;212(4):463– 467.
18. Prior years’ performance & budget submissions. Centers for Medicare & Medicaid Services website. http://www.cms.gov/About-CMS/Agency -Information/PerformanceBudget/Prior_Years _Performance_and_Budget_Submissions.html. Accessed October 12, 2012.
6. The National Practitioner Data Bank. Department of Health and Human Services HRSA website. www .npdb.hrsa.gov/topNavigation/aboutUs.jsp. Accessed October 12, 2012.
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DOI: 10.1002/jhrm
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ABOUT TH E AU TH ORS Nicole Tin-Lok Jiam, BA, is a medical school student at Johns Hopkins University School of Medicine. She received her BA in neuroscience, with a minor in entrepreneurship and management, at Johns Hopkins University. She is the board chair of two 501(c)(3) organizations and a 2013–2014 Albert Schweitzer fellow. Michol A. Cooper, MD, PhD, is a general surgery resident at the Johns Hopkins Hospital. She received her MD at the University of Cincinnati and her PhD in biomedical engineering at the University of Michigan. Her research focus is on pancreatic cancer, and she is an emerging leader in patient safety. Heather G. Lyu, BA, is a medical school student at Johns Hopkins University School of Medicine. She received her BA in media studies at the University of Virginia. She was a research fellow in the predoctoral research
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program for medical students. Kenzo Hirose, MD, is an assistant professor of surgery and general surgeon at the Johns Hopkins Hospital, specializing in hepatopancreatobiliary surgery with an interest in benign and malignant conditions of the liver, bile duct, and pancreas. He received his medical education training at Harvard Medical School and general surgery residency at the University of California–San Francisco. Martin A. Makary, MD, MPH, is chief of minimally invasive pancreaticobiliary surgery and surgical director of the Johns Hopkins Pancreas Multidisciplinary Cancer Clinic. As a general surgeon, he has pioneered new pancreas operations at Johns Hopkins and nationally, such as laparoscopic pancreatectomy with laparoscopic islet autotransplantation to preserve insulin production and laparoscopic spleen-preserving surgery. He received his MD at Thomas Jefferson University and MPH at the Harvard School of Public Health.
JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 33, NUMBER 4
DOI: 10.1002/jhrm
