The only claim ever made by a patient against me was soon dismissed by the court as vexatious. I had, from the kindness of my heart, prepared a medical report for him free of charge, only to be presented by him with a claim of $375,000 of negligence a few months later. As the old Indian saying has it, ‘Why do you hate me when I’ve never done anything for you?’
A paper in a recent edition of the New England Journal of Medicine examines the question of whether claims for malpractice against doctors in the United States are evenly spread throughout the profession, or whether some doctors are more prone to being sued than others. The ultimate aim of the authors is to aid the prevention of claims by identifying in advance those characteristics of doctors more likely than others to be sued. Presumably they will be redeployed or sent to re-education camps until they lose those characteristics.
The authors (from Stanford) examine the records of 54,099 physicians for ten years between the beginning of 2005 and the end of 2014. They had a total of 66,426 paid-up claims against them, settled at an average of $377,000. I worked it out that if this sample of physicians were typical of US physicians as a whole, about $45 billion are paid out annually in damages in malpractice suits in the US.
Not surprisingly, the researchers found that doctors in some specialities were more likely to be sued than others: internal medicine (15 per cent of claims), obstetrics and gynaecology (13 per cent) and general surgery (12 per cent). 54 per cent of the payments were for significant injury and about a third for death. Missed or wronged diagnoses must presumably have made up most of the rest, though the authors do not say so.
Of the settled claims, only 3 per cent were awarded by court, 97 per cent being out-of-court. Again, the authors do not mention the possibility that some or many of the claims were settled not because wrong had been done, but because they would have been more expensive to defend than to settle. In essence tort is a system of blackmail moderated by poker.
The settled claims were not evenly distributed among doctors. About 32 per cent of settlements were made against only 1 per cent of doctors, and if a doctor had had a claim settled against him his chances of having another were increased. Not surprisingly, perhaps, the more claims against a doctor that had been settled, the more likely it was that he would have another in the near future. By the time a physician has had three claims settled against him, he has a 26 per cent chance of another within 2 years and 37 per cent within 4 years. Approximately 4 per cent of the sample of physicians included in the paper had had three claims settled against them.
Does this mean that a relatively small proportion of doctors are responsible for much if not most of the malpractice in America, and that they could be weeded out or otherwise dealt with to reduce the overall level of malpractice?
It is not possible from the data presented in the paper to conclude this. The chances of being sued may vary according to type of patient as well as to type of doctor. It is possible that a first settlement increases the chances of a second not because the doctor concerned is incompetent but because he is a dog who has been given a bad name. No geographical analysis was given in the paper. Given the sometimes aleatory nature of legal outcomes, one would have liked to know the number of actions in which no settlement was reached and the action dropped. Like many another scientific paper, this one raised more questions than it answers.