I . Medico-Legal Session

The Society of Thoracic Surgeons Professional Liability Survey, 1988-1989 Thomas D. Bartley, MD Chairman, Committee on Medico-Legal Affairs, The Society of Thoracic Surgeons


oday, I come before you with another brief report on the results of the Professional Liability Survey of our membership. This was instituted initially in an attempt to estimate the depth of the professional liability problem, to identify trends regarding the severity of the problem, and to identify some of the more common pitfalls in the practice of our specialty that result in professional liability actions. The goals have probably been reached in part, but we might have gotten there without the survey, too. At any rate, the figures for 1988 and 1989 do not show any real reduction in the number or amount of monetary awards for claims closed as reported on by our members. 1989 is better than 1988, but it is not much better than 1986 or 1985. Maybe 1989 represents the beginning of a trend for the better, but only time will answer this question. In 1988 there were 78 claims settled against our members. This compares with 97 in 1986, 55 in 1985, 62 during 1984, and 42 in 1983. The 1989 survey resulted in information on 68 closed claims. As mentioned, the amounts involved were considerably less than reported for 1988, and there were no multimillion dollar awards in the 1989 group, the highest being for $600,000 in a case involving paraplegia after ligation of a patent ductus arteriosus. The award amounts by year were as follows: 1983: $1,250 to $550,000 1984: $2,000 to $1,000,000 1985: $2,500 to $1,700,000 1986: $5,000 to $1,400,000 1988: $1 to $600,000 1989: $500 to $600,000 Previous survey results indicated that infusion of air after termination of cardiopulmonary bypass while reinfusing reservoir perfusate to improve intravascular volume resulted in significant awards to plaintiffs. Awareness of the problem and technological improvement of the bypass equipment have definitely played a part in reducing these kinds of accidents. Otherwise the kinds of cases Presented at the Interim Meeting of The Society of Thoracic Surgeons, Chicago, IL, Sep 21-23, 1990. Address reprint requests to Dr Bartley, 1008 Minnequa Ave, Pueblo, CO 81004. 0 1991 by The Society of

Thoracic Surgeons

involved in closed claims have not changed much over the years. The results from the 1989 survey are as follows: Coronary artery bypass grafting: 32 Valve replacement: 11 Insurance: 7 Pulmonary resection: 11 Congenital heart repair: 6 Myocardial revascularization remains the most common single operation done by members of our specialty, and so leads in the number of professional liability actions, too. Valve replacement and pulmonary resection are less commonly done operations and thus less commonly involved in professional liability issues. Regardless of years or circumstances, retained foreign bodies are almost always going to result in some kind of settlement for the plaintiff. Without denominator information it is difficult to know how significant a factor trauma care is in the genesis of liability claims for members of our specialty, but in the last 2 years during which time we received reports of 146 claims settled, seven involved trauma cases. In slightly more than 50% of cases the plaintiff received no monetary reward (Table 1). From the material presented, you can draw your own conclusions. My impressions are that the professional liability problem is not getting worse, but that it is not getting better either. 1989 reports seem to indicate improvement, but whether this is a reporting aberration or an aberration of timing remains to be seen. Another strong impression that I have is that there is little or no correlation between the legitimacy of a suit and the

Table 1. Outcomes bv Year Year





1983 1984 1985 1986 1988 1989

22 30 11 44 26 24

NA NA 6 12 12 13

20 32 36 30 36 29

NA NA 2 2 4 1



not applicable.

Ann Thorac Surg 1991;52:35&5


Ann Thorac Surg 1991;52:354-55

outcome or amount of settlement. I have not produced data to support this impression, but large awards or settlements were reported for relatively minor disabilities and smaller awards for major disabilities or death. Any untoward result, whether or not it comes about because of questionable surgical or medical care, is apt to result in a substantial financial benefit to the plaintiff or his or her family. The last survey sent out asked a question about professional liability insurance premiums as a percentage of net income and was engendered by remarks and discussions



with staff of the Physician Payment Review Commission during meetings held to reach consensus on reimbursement formulas for outpatient visits. Not all responders answered this question, but those who did indicated that the low was 3% in Missouri and Kansas and that the high was 42%.The average was around 20%. This question will be asked again in 1990, and will give us some data for discussion if and when the Physician Payment Review Commission asks our advice about the professional liability insurance cost component of the resource-based relative value scale.

The Society of Thoracic Surgeons Professional Liability Survey, 1988-1989.

I . Medico-Legal Session The Society of Thoracic Surgeons Professional Liability Survey, 1988-1989 Thomas D. Bartley, MD Chairman, Committee on Medic...
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