Attorney Insights: Repeat Offenders of Medical Malpractice

In this interview, personal injury attorney Brian Hall offers his professional perspective regarding surprising medical malpractice statistics recently published in a New England Journal of Medicine article: “Prevalence and Characteristics of Physicians Prone to Malpractice Claims”.

Q: “Do you think attorneys were surprised by the information in the article?”

A: “I think many of us intuited that it was indeed the case that a small number of physicians are responsible for a disproportionate share of medical malpractice. Not only cases brought, but also claims paid. I think that the value of this article is putting forth some numbers that strongly support that intuition. The article found that 1% of all doctors account for 32% of paid medical malpractice claims. That is huge difference.”

Q: “What’s being done to keep these “repeat offenders” in check?”

A: “I think that there are a couple of checks on it. One is the specter of a malpractice suit, and the other is the difficulty that some doctors might have with getting liability coverage if they have a mounting number of malpractice cases.”

Q: “It doesn’t seem as though this information can be easily obtained, but how can a consumer find out if doctors have had malpractice claims filed against them?”

A: “There are ways of figuring it out, but not always. For example, in Philadelphia, if you want to get a sense of how many times a doctor has been sued, and also to get a sense of how many times the doctor has been sued successfully, you can go onto the Court of Common Pleas website, look for the civil docket search, and then plug in the doctor’s name. This should bring up all of the lawsuits that have been brought against that doctor. It’s one way of getting pretty decent information about whether or not a particular doctor has been sued, and if so, successfully or unsuccessfully.”

Q: “What actions are being taken against doctors who repeatedly commit malpractice?”

A: “All claims, settlements, and all settlement payments made on behalf of doctors are supposed to be reported to the state licensing board. That information should also be shared with the National Practitioners Data Bank. Whether disciplinary action is taken, however, is not public information. Most of what happens in those proceedings is confidential.”

Q: “It seems that hospitals, whether intentionally or intentionally, are shielding doctors in some cases. Do you agree?”

A: “The article mentioned that a number of malpractice claims were excluded from the statistics because a hospital, or other healthcare entity, paid on the doctor’s behalf. I see this fairly frequently in the cases that I handle against doctors or healthcare providers at hospitals. The hospital will step in and settle the case on its own insurance. That shields the doctor from being reporting to the National Practitioner Data Bank. Referring to your question about why more people don’t know about this— it’s because the information in the National Practitioner Data Bank is not readily available. It’s confidential.”

Q: “Changing gears—other statistics regarding physicians and malpractice were also interesting, perhaps even counter-intuitive—age of the physician, for example. ”

A: “Yes. The study found that younger doctors are less likely to have paid a malpractice claim.”

Q: “How is that the case?”

A: “I think it’s fair to say that many of the more difficult medical cases are handled by more experienced doctors. In those difficult cases, there’s a greater potential for mistakes to be catastrophic for the patient. That might account for it.”

Q: “There were also statistics related to practice area or specialty—thoughts?”

A: “What stood out for me is that emergency medicine is, what, 7th down the list? I thought it would be much higher. There’s a state bill pending that would provide greater immunity from lawsuits on behalf of emergency medicine doctors. The argument was that the emergency medicine doctors are often targets of malpractice cases. These numbers tend not to support that.”

Q: “How do the statistics mentioned in the article compare with your personal experience?”

A: “In my experience, I’ve been involved in more lawsuits against emergency medicine doctors than, for example, internal medicine doctors. Yet, internists rank significantly higher in the study than emergency medicine doctors.”

Q: “These types of cases are very expensive to try. Is that primarily due to the cost of expert witnesses?”

A: “Malpractice cases are expensive to bring. They cost a lawyer, typically, tens of thousands of dollars, sometimes more than a hundred thousand dollars, to bring the case to court. In Pennsylvania, we do not have depositions of experts, yet medical malpractice cases still are expensive. In New Jersey and in federal court, there are depositions of experts. That really ramps up the cost of those cases.”

Q: “So what actions do you think might make a positive impact on these troubling statistics?”

A: “One thing I take away from the article is that it makes sense for there to be more oversight, more direct supervision of doctors, in order to cut down on the number of medical negligence cases. The article suggests, among other things, peer counseling, training, and supervision. Those are standard approaches in other industries. They have not been widely adopted in medicine. I think that these are good suggestions, or at least a start toward the possible improvements.”

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