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Thursday, August 18, 2011

Over career, most doctors in US will face lawsuit

By Chelsea Conaboy

Most doctors in America will be sued at some point during their career, a Harvard study released yesterday in the New England Journal of Medicine has found. Physicians who perform high-risk procedures, including neurosurgeons and obstetricians, face a near certainty of being named in a malpractice case before they reach age 65.

Yet a relatively small number of claims, about 22 percent, result in payments to patients or their families.

Authors of the study, which examined 15 years of data, said it highlights the need for changes in malpractice law so that doctors and patients can resolve disputes before they resort to litigation, which often costs both parties money and heartache.

“Doctors get sued far more frequently than anyone would have thought, and in some specialties, it’s extremely high,’’ said Amitabh Chandra, an economist and professor of public policy at the Harvard Kennedy School and an author of the study. “In some sense, the payment is the least important part, because you can insure against it, but you can’t insure against the hassle cost.’’

The study looked at claims data for nearly 41,000 physicians from 1991 to 2005. The researchers found that 7.4 percent of physicians had a malpractice claim against them each year and that 1.6 percent had a claim that led to a payment each year.

The likelihood and outcome of lawsuits varied considerably across specialties. But the fact that even doctors in low-risk areas of practice, such as family medicine, had a 75 percent chance of being sued during their career is cause for concern, Chandra said.

Every time doctors are sued they face lost income from the time they spend out of the office fighting the case, said Dr. Alan Woodward, a retired emergency physician who is chairman of the Massachusetts Medical Society’s committee on professional liability. The threat to their reputation is a cause of major stress, and the anxiety can compromise the care they provide to other patients, he said.

Fear of lawsuits drives many physicians to practice defensive medicine - ordering more diagnostic tests than necessary, for example - or to retire early, Woodward said. And when doctors fear legal retribution, they are less likely to share information, with patients or internally.

“It creates a culture of secrecy and fear,’’ he said.

The small number of successful malpractice cases does not mean most are frivolous, said Chandra. It can be difficult to prove that an injury resulted from an avoidable error in patient care, he said.

“Many of us are coming to the conclusion that litigation is not the answer,’’ Chandra said.

Woodward met with Chandra yesterday and discussed the study, which included researchers from Harvard-affiliated Massachusetts General Hospital, the Rand Institute, and the University of Southern California. Woodward said it provides more evidence that government regulations should encourage doctors to talk openly with patients, apologize when warranted, and offer compensation when appropriate.

Some advocates, including the consumer group Health Care for All, have been trying for at least four years to get a law passed in Massachusetts making such apologies inadmissible in court; such laws exist in many other states. The hope is that doctors will feel more secure in talking about a patient’s care and even admitting an error. The patient could still pursue a case based on the medical evidence.

Previous studies have shown that patients are less likely to sue when they receive an apology and explanation from their doctor.

Brian Rosman, research director of Health Care for All, said everyone will benefit if patient-doctor communication is divorced from legal proceedings. That would allow doctors and hospitals to deal more directly with the root cause of an error.

“Fixing this problem can also improve the quality of care,’’ he said.

The medical society has been working with Beth Israel Deaconess Medical Center, using a $273,782 federal grant, to design a plan for a system that would encourage apologies and compensation, when justified, in Massachusetts. The plan is set to be released this fall.

The group has interviewed dozens of people representing patients, hospitals, the legal community, and doctors.

Woodward said that nearly universal support exists for a system that encourages doctors to apologize.

Woodward said the medical society, along with the hospital and other partners, have applied for a three-year grant of about $3 million to create pilot projects at Baystate Health in Western Massachusetts and Beth Israel Deaconess and to launch a statewide campaign educating patients and doctors.

He is also working with lawmakers to draft legislation requiring malpractice cases to go through a six-month vetting period in which the physicians would share all pertinent medical records with the patient and analyze whether an avoidable error occurred.

Litigation plays an important role in exposing errors and getting patients the help they need, said medical malpractice lawyer Jeffrey Catalano, vice president of the Massachusetts Bar Association. But, he said, it is often inefficient.

He supports what is referred to as the apology law.

“The devil’s in the details, but it has a lot of promise,’’ said Catalano, who represents patients.

Catalano said out-of-court reviews should be overseen by a third-party attorney and that patients’ lawyers should be allowed to participate to ensure their clients’ rights are protected.

Chandra and his coauthor, Dr. Anupam B. Jena of Mass. General, said they hope their study will dispel the fear that many doctors have of big payouts. Their study found just 66 claims that resulted in payments exceeding $1 million. Average claims by specialty ranged from $117,832 in dermatology to $520,923 in pediatrics.

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