A Missed Opportunity for the Malpractice System to Improve Health Care

By Aaron E. Carroll National Source

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  • June 28, 2019

SOURCE: The New York Times

The American medical malpractice system is doing almost nothing to improve the quality of health care, research suggests. What may be more concerning is that there is very little discussion, much less action, on reform.

Despite worries among doctors that they are at financial risk from large payouts to plaintiffs, it turns out that a small percentage are responsible for a huge number of claims. A new study, confirming earlier research, found that about 2 percent of doctors accounted for about 39 percent of all claims in the United States.

The study contained other valuable information about a system that not only compensates patients who have been harmed, but is also supposed to identify physicians who may be performing poorly and need correction.

First, these doctors quit at higher rates than other physicians. This is considered good news by the medical profession. These doctors also tend not to pick up and move somewhere else to start fresh (which many thought they’d do given that licenses and malpractice are regulated at the state level).

But the overwhelming majority of doctors who had five or more paid claims kept on going. And they also moved to solo practice and small groups more often, where there’s even less oversight, so those problematic doctors may produce even worse outcomes.

We have long known that some doctors are likelier than others to be sued. Those who practice in certain higher-risk specialties — like surgery, obstetrics and gynecology, and emergency medicine — are more likely to be sued than those in lower-risk specialties like family medicine, pediatrics and psychiatry. Men are more likely to be sued than women. Lawsuits seem to peak when doctors are around 40.

A few years ago, a study in the New England Journal of Medicine sought to examine this group of physicians specifically and see what happens to them after lawsuits.

The study’s authors used the National Practitioner Data Bank, which houses information on actions taken against physicians by hospitals or licensing boards as well as any payments made on their behalf because of malpractice claims. Although researchers cannot obtain information about individual physicians through the database, anonymous identifiers allow them to see if more than one claim is attributed to the same physician.

Over a 10-year period, only 6 percent of physicians over all had a paid claim; this means that the vast majority have no paid claims at all. Only 0.2 percent of physicians, a very small minority, account for 12 percent of all paid claims.

Logic would assume that these physicians with a large number of claims over a set period would be those who may need intervention. Certainly, we might expect changes in where and with whom they work.

Many of these same researchers went back to the practitioner data bank to see if this was the case, and have recently published their findings. This time, they looked at records from 2003 through 2015. As before, they found that a small number of physicians accounted for most claims.

In this analysis, the researchers linked this group of doctors to another database, the Medicare Data on Provider Practice and Specialty, which contains information on practice location and type. This allowed them to look at whether physicians moved or changed jobs after claims.

Those who accumulated more claims were more likely to stop practicing medicine. Even though they were more likely to retire, more than 90 percent of doctors who had at least five claims were still in practice.

Physicians with more claims were also not any more likely than those with fewer or no complaints to move to another state and continue practicing. This is actually one of the reasons the practitioner data bank was created — to prevent doctors from running away from their history by moving between states. In that respect, it appears to be working.

But physicians with more claims shifted their type of practice. Those with five or more claims had more than twice the odds of moving into solo practice.

This makes sense, in some ways. Doctors with many claims may find it harder to find employment in large groups or in big clinics. Anyone can, however, set up his or her own practice. The general public is much less likely than a potential employer to seek out information about prior lawsuits.

This may be the most disturbing finding. Michelle Mello, an author of these papers and a professor of law and of health research and policy at Stanford University, said: “Malpractice frequent fliers could benefit from intervention from peers, hospitals and insurers to help them improve their practice or recognize limitations that should lead to changes in what they do clinically. When they instead just hang out a shingle, that opportunity is likely to be lost.”

Research has shown that the malpractice system, in terms of being a deterrent, has limited effects on the quality of care. A National Bureau of Economic Research working paper from 2014 found that the system — which largely holds physicians to “standards of care” — doesn’t seem to lead to higher quality according to widely accepted metrics.

In theory, licensing boards could flag and address physicians who have had a worrisome number of claims against them.

“In practice, they may lack some of the necessary information to see the patterns, especially if prior cases occurred in another jurisdiction,” said David Studdert, another author of these studies and a professor of law and medicine at Stanford. “Also, like courts, boards tend to focus on wrongdoing in particular instances, rather than looking at the bigger picture. There are sound legal reasons for doing that, but it doesn’t jibe well with how we think about quality of care outside the law.”

Many in the medical profession spend time worrying about how unfair the malpractice system is to physicians, and how it’s overused to punish innocent doctors. They say the system is failing to help us reduce spending. This may be true. But it seems more attention should be paid to how it might improve the quality of care as well.