Medical liability: By late career, 61% of doctors have been sued

Six out of 10 physicians 55 and older have been sued, according to a new American Medical Association study.

Male doctors are twice as likely as their female counterparts to get sued during their career. And more physicians in solo and specialty practices are sued than those in multispecialty practices.

The frequency of medical liability lawsuits documented in the report illustrates the need for reforms at the state and federal levels, said AMA Immediate Past President J. James Rohack, MD.

"Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can influence what specialty of medicine physicians practice, where they practice and when they retire," Dr. Rohack said in a statement. "This litigious climate hurts patients' access to physician care at a time when the nation is working to reduce unnecessary health care costs."

The study analyzed data from 5,825 physicians who responded to the AMA's Physician Practice Information survey, which examined costs of medical practice and associated factors from 2007 to 2008. Research showed that an average of 95 medical liability claims were filed for every 100 physicians during the course of the doctors' careers. (See correction)

The August report found that 42.2% of physicians were sued, with 22.4% sued twice or more. Rates varied by specialty, but general surgeons and obstetrician-gynecologists were most likely to be sued (69.2%). Family physicians and general internists had similar rates (38.9% and 34%). Pediatricians and psychiatrists were sued the least.

Physicians who had an ownership interest in a practice were at greater risk, with 47.5% reporting being sued, compared with 33.4% for those with no ownership interest.

The majority of lawsuits never made it to the courtroom, according to 2008 data from the Physician Insurers Assn. of America, a trade group representing liability insurance companies owned or operated by physicians, hospitals and other health care professionals.

Sixty-five percent were dropped, dismissed or withdrawn. About one in four claims was settled, and 4.5% were decided by alternative dispute mechanism. Of the 5% that went to trial, defendants won in 90% of cases, the PIAA said.

But fighting a claim is costly. Defense against a claim averaged $22,163 for suits dropped, dismissed or withdrawn, and more than $100,000 for cases that went to trial, according to PIAA data.

The frequency of medical liability claims isn't a surprise for those in the field, said Lawrence Smarr, president and CEO of PIAA. "This is the situation that we've been living with for the last several decades."

Trial attorneys, however, said the AMA report is misleading.

"Their data, as well as other studies, show that a small percentage of physicians are responsible for the vast majority of malpractice claims," according to a statement by Ray De Lorenzi, spokesman for the American Assn. for Justice, which represents trial lawyers.

Fighting for reforms

For years, physicians have fought for medical liability reform. More than 30 states have implemented caps on damage awards. But the caps of some states, including Illinois and Georgia, were recently thrown out by courts.

Damage caps didn't make it into the health reform law. But in June, the Dept. of Health and Human Services issued $25 million in grants to health systems and states to test alternative approaches such as health courts, early compensation offer programs and safe harbors. A total of $50 million is designated in the law for similar demonstration projects.

The cost of medical liability premiums is declining in many parts of the nation, but legal costs for physicians against meritless suits remain high, Smarr said. "Most doctors practice defensive medicine to one extent or another. The increasing threat of litigation raises the cost of health care."

A recent study found the vast majority of doctors practice defensive medicine. About nine in 10 physicians said doctors order more tests and procedures than patients need so they can protect themselves against lawsuits, according to the study in the June 28 Archives of Internal Medicine.

But De Lorenzi said research has shown that "the vast majority of claims are meritorious and involve real errors," and those types of errors are not declining.

"This reinforces why lawmakers must focus on the 98,000 people that die every year from preventable medical errors, not eliminating the rights of injured patients," he said. That figure was popularized by a 1999 Institute of Medicine report, which cited research stating that such medical errors kill between 44,000 and 98,000 people each year.

Tort reform critic Joanne Doroshow, founder and executive director of the Center for Justice and Democracy, said damage caps and many of the demonstration projects infringe on patients' rights. Instead, she recommends a change in statute of limitation laws to allow individuals to be brought into a lawsuit after the initial filing if they are discovered to have been responsible.

"That would be responsible for dropping a number of claims against physicians," Doroshow said.

Steven M. Malkin, MD, president of the Illinois State Medical Society, questioned the wisdom of experimenting with new programs rather than moving forward with proven reforms, especially at a time of increasing physician shortages and rising health care costs. "We don't need more studies to find things that work. We don't have years to wait. The money is being wasted now."

The medical society recently released a survey that found that 82% of Illinois physicians said they see every patient as a medical liability risk. Two-thirds of physicians have reduced or eliminated high-risk care they provide due to the threat of medical liability, the survey showed.

Dr. Rohack said the AMA will continue to push for reforms such as limits on noneconomic damage awards similar to laws that have proven effective in California and Texas. "We're committed to lowering health care costs to make it affordable to all Americans, and ending defensive medicine is a big part of that," he said.