Medical malpractice suits are time consuming and emotionally draining. The average physician spends more time—about 11 percent of his or her career—embroiled in malpractice litigation than it takes to complete medical school.
Most claims consume two years prior to resolution, and nearly twice that much time elapses since the event in question.
The defensive medicine practiced by health professionals to avoid lawsuits costs an estimated $60 billion annually, based on a survey of more than 1,200 physicians. That does not include the cost of carrying liability insurance. Many say the cost of defending—and avoiding—medical liability suits is siphoning funds away from needed health-care delivery reforms and infrastructure expenditures.
Consultant PwC, relying on that CBO report, estimated that malpractice insurance and defensive medicine accounted for 10 percent of total health-care costs. A 2010 Health Affairs article more conservatively pegged those costs at 2.4 percent of healthcare spending.
In a 2010 survey, U.S. orthopedic surgeons bluntly admitted that about 30 percent of tests and referrals were medically unnecessary and done to reduce physician vulnerability to lawsuits.
Whether a physician practices defensive medicine may depend more on a doctor’s fear of being sued than the level of pain-and-suffering damage caps and insurance premiums in that physician’s state. Researchers surveyed physicians about their medical liability fears and examined their Medicare claims from 2007 to 2009. The more worried physicians were about litigation, the more likely they ordered more tests and advanced imaging, referred patients to an emergency department or admitted them to a hospital. The study suggests reformers should address physicians’ fears more than limits on liability damages.
A 2011 analysis by the American Medical Association found that the average amount to defend a lawsuit in 2010 was $47,158, compared with $28,981 in 2001. The average cost to pay a medical liability claim—whether it was a settlement, jury award or some other disposition—was $331,947, compared with $297,682 in 2001.
Doctors spend significant time fighting lawsuits, regardless of outcome. The average litigated claim lingered for 25 months. Doctors spent 20 months defending cases that were ultimately dismissed, while claims going to trial took 39 months. Doctors who were victorious in court spent an average of 44 months in litigation.
Most physicians are sued at least once during their careers, and usually prevail. The frequency of medical liability claims varies by specialty. Neurosurgeons are sued the most—nearly 20 percent are defendants in a given year.
A study in The New England Journal of Medicine estimated that by age 65 about 75 percent of physicians in low-risk specialties have been the target of at least one lawsuit, compared with about 99 percent of those in high-risk specialties.
Nearly 1 out of 4 surgeons are engaged in litigation at any given time, according to a 2011 study. Those embroiled in lawsuits are more likely to suffer burnout, depression, emotional exhaustion and detachment, lower self-esteem or even suicidal thoughts.
The annual risk that physicians will be sued is about 5 percent in low-risk specialties, such as psychiatry and pediatrics, with a cumulative career risk of about 75 percent. In high-risk specialties such as neurosurgery and cardiac surgery, the annual risk is about 20 percent and cumulative career risk is 99 percent.
In a welcome development for physicians, nearly 60 percent of medical liability premiums held steady in 2012, and about 26 percent decreased, according to the Medical Liability Monitor annual survey.
According to Brian Atchinson, president of the Physician Insurers Association of America (PIAA), 70 percent of legal claims do not result in payments to patients, and physician defendants prevail 80 percent of time in claims resolved by verdict.
The number and total value of physician malpractice payments dropped in 2011 for the eighth consecutive year. The 9,758 payments totaled $3.2 billion in 2011, which represents about .12 percent of total health-care costs.
Studies have found modest effects of prospective malpractice reform. A CBO report estimated that a package of five malpractice reforms would reduce national health spending by about 0.5 percent. A 2010 Health Affairs study calculated that a 10 percent decline in medical malpractice premiums would result in less than 1 percent of total health-care savings. That is because medical malpractice insurance accounts for less than 2 percent of national health spending.
However, those costs are significant to physicians. Texas placed limits on malpractice damages in 2003. Liability premiums fell from about $17,000 that year to about $10,300 in 2011 for family physicians. Rates fell from more than $48,000 to about $30,500 for general surgeons and from $53,800 to $33,900 for obstetrics and gynecology.
The Charter on Medical Professionalism sets standards on physician honesty and openness with patients. The document has been endorsed by more than 100 professional groups and the Accreditation Council for Graduate Medical Education.
The above is an excerpt from his new book So Long, Marcus Welby, M.D.: How Today’s Health Care Is Suffocating Independent Physicians—and How Some Changed to Thrive. D Healthcare Daily founding editor Steve Jacob draws on dozens of interviews and more than 500 published sources to cover these issues and describe how the landscape is changing for doctors.