Just One Malpractice Payout Means Far Higher Risk for Future Claims
May 1, 2023 8 minutes read
By Stacey Kusterbeck
If the plaintiff prevails in malpractice litigation against an emergency physician (EP), the defendant EP might explain it away as unfair or just bad luck. “A lot of doctors think the malpractice system is like getting hit by lighting, that it’s haphazard and random,” says David A. Hyman, MD, JD, the Scott K. Ginsburg professor of health law & policy at Georgetown University Law Center.
In fact, a single paid malpractice claim is associated with significant future claim risk for physicians, according to research conducted by Hyman and colleagues.1 They analyzed malpractice claims that resulted in a payout from 881,876 physicians licensed to practice in the United States. Of 841,961 physicians with zero paid claims in the 2009-2013 period (referred by the researchers as the “prior” period), only 3.3% were the subject of one or more claims in the next five years (2018-2023).
Of 34,512 physicians with one paid claim in the prior period, 12% were the subject of one or more claims in the next five years. Of 4,189 physicians with two paid claims in the prior period, 22.4% were the subject of one or more claims in the next five years. Of 1,214 physicians with three paid claims in the prior period, 37% were the subject of one or more claims in the next five years. “EP defendants may downplay the significance of a malpractice payout. You can rationalize all you want, but the figures don’t lie,” Hyman says.
Successfully sued physicians, including EPs, are at a fourfold higher risk of a future claim in a relatively short period. That could be because the physician is providing worse care than colleagues without paid claims, or the physician’s communication skills are worse than colleagues. “It could be both — worse care, and worse communication skills,” Hyman offers. “But the key point is: It’s an important signal, and we should be paying attention to it.”
In previous work published in 2021, Hyman and colleagues found EPs recorded a paid claim rate comparable to other non-surgical specialty physicians.2 In the 2023 study, Hyman and colleagues found the increase in risk of a future claim, based on having a prior claim, was the same for both high-risk specialties (e.g., OB/GYN or surgery) and lower-risk specialties. Additionally, physicians with at least one malpractice payout were at higher risk for future claims in states with (and without) public disclosure of prior claims. “There isn’t what we call a ‘blood in the water’ effect, where malpractice lawyers are looking to see who’s got paid claims, and then they initiate more claims against them,” Hyman explains.
By taking the “signal” of a malpractice payout seriously, physicians hopefully prevent future harm to patients and prevent future claims. Hyman says losing a lawsuit should prompt ED physician groups, ED managers, hospital risk management departments, and the defendant EPs themselves to ask the simple question: Is there something we can do about this? “In limited cases, it might mean the physician should stop seeing patients,” Hyman offers.
Short of that, the EP might obtain retraining to improve clinical practice (or communication skills). “Patients understand that things go wrong. But they go to a plaintiff’s lawyer when they feel they’ve been treated poorly in connection with the things that went wrong,” Hyman says.
Hyman routinely tells medical students, “There’s a four-letter word that predicts if you’ll be sued, and it’s ‘jerk.’” A perception that a physician was rude, rushed, or dismissive causes many patients to call a lawyer. However, not all those patients will be able to file a lawsuit. “Whether the plaintiff’s lawyer is willing to bring suit doesn’t turn on those issues,” Hyman notes.
Malpractice lawyers must consider whether there is evidence of negligence and calculate an estimate of damage expenses. “A whole lot of things have to sort of line up for a lawsuit to be actually brought, let alone for a plaintiff to prevail,” Hyman says.
Some number of “junk” lawsuits are filed, but EPs probably overestimate how many of those actually are successful. “The ones that get paid are overwhelmingly not junk. Insurance companies don’t give away money voluntarily, and juries usually favor doctors,” Hyman says.
Thus, if money was paid for a malpractice claim against an EP, it is highly likely there was some validity to the claim. If whatever went wrong, whether low-quality care or bad communication, is not fixed, the defendant EP likely will be sued repeatedly. “The point of our study is that there is a valuable signal here that physicians ought to pay attention to, for their own self-interest,” Hyman advises.
Providing high-quality care is the best way to avoid malpractice claims. Spending even a little bit more time with ED patients to establish a trusting relationship also can deter lawsuits.
“People may have a hard time judging the quality of healthcare,” Hyman says. “But they can instantly tell whether they were treated with respect.”
Many EPs are employed by hospitals or staffing groups. “They’ve got a boss — and if I were the boss, I’d look at our evidence and say, ‘Maybe I should figure out how to gently intervene with the physicians who have had claims to try to reduce the likelihood that they will have future claims,’” says Bernard S. Black, JD, who worked with Hyman on this research. However, if leaders offer an intervention, physicians may resist based on the mistaken belief malpractice claims happen randomly. “They may believe, ‘There are a few bad apples — not me, of course,’ but that one claim doesn’t mean much,” says Black, the Nicholas D. Chabraja Professor at Northwestern University’s Pritzker School of Law.
It is true there are cases in which the EP is named in a lawsuit, even though he or she never even saw the patient. However, those defendant EPs often are dismissed at some point in the litigation. “Most of the time, those claims go away because it doesn’t make sense for the plaintiff to keep those [uninvolved] people in the case,” Black says.
Plaintiff attorneys cannot always figure out who is liable before filing the lawsuit. Some will name everyone they believe was involved. “The physicians think it’s just a scattershot approach to sue everybody. Maybe sometimes it is, but usually it’s not,” Black says.
Dealing with lawsuits is frustrating and unpleasant for the EP, but providers usually will be dismissed if they were not involved in the case. “It’s not clear how we can make the tort system any better,” Black laments. “We may have to live with some number of cases where you got sued, but eventually you get dismissed and don’t pay.”
Researchers only analyzed claims with a payout. Physicians who were sued without a payout were not included in the study, so it is unclear of the significance of those malpractice claims in predicting future lawsuits. “I suspect there is some signal in who got sued, even without a payout — although the signal is less strong,” Black offers.
Regardless of whether an EP was negligent, poor communication makes it more likely a patient will decide to sue. “At a minimum, we can think about: Can you communicate better?” Black says.
Some EPs become defensive and resentful when their communication skills are questioned. “The challenge is how to do this without threatening the EP’s job,” Black says.
Black believes the message to the EP should be: This is an opportunity to be better and prevent future claims. Physicians likely will not be fired for one paid claim, and a malpractice payout does not necessarily mean the provider was negligent.
“But the message from our research is that even one claim is giving you a signal. You are doing things that led to a claim and a payout. What can we do to reduce your future risk?” Black asks. “This is worth exploring.”
Will an intervention by a hospital or ED practice group actually prevent claims or lower malpractice premiums? “It would be a wonderful thing to try,” Black suggests. “But if I’m running a hospital or an ED staffing company, should I invest in this instead of all the other things I could invest in? That I can’t answer.”
To study the cost-effectiveness of intervening with EPs who are sued, researchers would need to intervene with some physicians and not others. There would need to be many participants to draw valid conclusions. “The problem is, you need a big sample, and there aren’t that many medical malpractice claims,” Black says. “It would be a hard study to conduct, and it might take 10 years before you concluded anything.”
Black co-authored a study of 65 EPs named in malpractice claims. Black and colleagues examined whether there was any change in how those EPs practiced after litigation.3 The only change was the sued EPs received higher patient satisfaction scores. “The message is if you get sued, the only thing we observe that changes is that you are nicer to your patients,” Black reports.
The EPs did not work faster or slower, order more tests, or admit more patients to the hospital. “But a proxy for your communication improves. And, maybe, that’s what should happen,” Black says.
The problem is physicians are not experts in how to improve communication skills. “They could use some help,” Black says. “If you’re a physician, you’re angry and upset that you got sued, and don’t think you did anything wrong most of the time — but you don’t know what to do.”
Every ED malpractice claim includes a unique set of facts. “But one of the most important actions an ED administrator can do is identify if there are any practice patterns that may have contributed to the provider’s case,” offers Adam Hennessey, DO, medical director and chair of emergency medicine at Roxborough Memorial Hospital in Philadelphia and Lower Bucks Hospital in Bristol, PA.
Hennessey says there are important questions to consider: Have there been complaints (from patients or other practitioners) about the EP’s behavior or practice patterns? Does the EP’s practice deviate from the standard of care? Does the EP’s practice deviate from the ED group’s practices? Was there a possible bias that needs to be addressed that might have contributed to the litigation?
“Direct and constructive, face-to-face communication with the provider is important. It also gives the provider an opportunity to provide any needed context,” Hennessey says.
Interested EPs can take advantage of the many available options, both in person and virtually, for training and education. “However, the utility of these approaches will be governed by the provider’s willingness to accept that their practice has deviated from a certain standard,” Hennessey cautions.
If there are concerns regarding an EP’s practice or a lawsuit is filed, it is best to establish a clear action plan with the involvement of risk management. “This can include chart reviews, direct observation, and/or restriction of privileges for a defined period,” Hennessey suggests.
REFERENCES
1. Hyman DA, Lerner J, Magid DJ, Black B. Association of past and future paid medical malpractice claims. JAMA Health Forum 2023;4:e225436.
2. Hyman DA, Rahmati M, Black B. Medical malpractice and physician discipline: The good, the bad, and the ugly. J Empir Leg Stud 2021;18:131-166.
3. Carlson JN, Foster KM, Black BS, et al. Emergency physician practice changes after being named in a malpractice claim. Ann Emerg Med 2020;75:221-235.
Of 841,961 physicians with zero paid claims in the 2009-2013 period, only 3.3% were the subject of one or more claims in the next five years (2018-2023). Of 34,512 physicians with one paid claim in the prior period, 12% were the subject of one or more claims in the next five years. Of 4,189 physicians with two paid claims in the prior period, 22.4% were the subject of one or more claims in the next five years. Of 1,214 physicians with three paid claims in the prior period, 37% were the subject of one or more claims in the next five years.
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