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Legal Notes: Malpractice in Emergency Medicine: Yesterday and Today

Glauser, Jonathan MD, MBA

doi: 10.1097/01.EEM.0000390645.25332.6c
Legal Notes

Part 1 in a Series

Malpractice Claims, 2007-2008

Malpractice Claims, 2007-2008

Some 11,529 malpractice claims were filed because of events in emergency departments over the past 23 years, and believe it or not, there is a silver lining. Slightly more than two-thirds of the claims were closed without any payment at all.

The great majority of the rest were settled without trial. Of the seven percent that went to trial, only 15 percent were found in favor of the plaintiff— one percent of cases overall, or only 119 claims over 23 years in which the doctor lost at trial. Best of all, emergency medicine was responsible for claims arising from the ED only 19 percent of the time. Internal medicine, family practice, orthopedic surgery, and general surgery each were deemed responsible in more than 10 percent of the cases involving the ED. (Acad Emerg Med 2010;17[5]:553.)

Unfortunately, while the database used — Physician Insurers Association of America — appeared comprehensive, many specifics were lacking. The malpractice insurers in the association collectively insure more than 60 percent of physicians in this country. The information is limited on specifics, and was obtained from a consortium of companies nationwide.

There is little to be gleaned about the cases. The PIAA data were broad, and it is unclear to me how EPs can be the primary defendants in less than 20 percent of cases arising out of EDs. More on this article later, except to say that missed myocardial infarction, other chest pain, abdominal/pelvic pain and injury, missed appendicitis, and fractures accounted for the leading claims. Ectopic pregnancy, so commonly cited in the past, was nowhere to be found, nor were other injuries related to extremity wounds.

Now the bad news. It cost slightly more than $30,000 to defend a claim in 2007. Of the cases going to trial, the cost of litigation was in the $70,000 range, the study found. It is clearly an expensive process either way, but much more so if the case goes to trial and verdict. This obviously has implications for whether an insurance company will settle or dig in its heels on behalf of the doctor. Approximately 27 percent of claims involving medical errors went uncompensated, and approximately the same percentage of claims actually paid out did not involve an error.

It gets worse. A sample of 5,825 physicians who practiced more than 20 hours per week were asked about their malpractice history. Seventy percent of general surgeons and obstetricians had been sued, 90 percent of the surgeons by age 55. The lowest incidence of claims were in pediatrics and psychiatry (22%). (Medical Liability Claim Frequency: A 2007-2008 snapshot of physicians. AMA Economic and Health Policy Research, August 2010;

Emergency medicine was the fifth riskiest field for litigation. Almost exactly half of EPs have been sued. Thirty-one percent have been sued more than once, and nine percent have been sued within the past 12 months. Not surprisingly, the longer an emergency physician practices, the more likely he is to be sued: 16.5 percent for those under 40, 55 percent for those 40 to 54, and 75 percent over 55, according to the AMA research.

Women were less likely to be sued, not only because they worked relatively fewer hours (an average of five hours less than men). Men tend to generate more RVUs, which has been posited to result in less time per patient and “less attention to interpersonal and/or technical aspects of care,” according to the AMA data.

Thirty years ago, 66 percent of obstetrician-gynecologists in Florida had never been sued, while 85 percent of physicians in the broad “medical” group never had. Board certification was of no help. Anesthesiologists, obstetrician-gynecologists, and surgeons were more likely to be sued. Perhaps the “best” doctors were more likely to face lawsuits because they took on risky care. Physicians with worse adverse claims experience were less likely to quit practice or move to another state. The doctors with the most favorable claims experience were in fact, more likely to leave Florida and practice in another state. (JAMA 1989;262[23]:3291.) So much for the rationale of the National Practitioner Data Bank.

Medical school ranking and foreign medical school graduation seemed to have no effect on being sued, and less than 10 percent of doctors sued were disciplined in any way. There was some correlation between being sued in the past (1975-1980) and claims per year in the ensuing three years.

Some things do stay the same, however. Being female appeared to be protective, even among surgeons, and being older also appeared to result in fewer suits per year. (JAMA 1989; 262[23]:3291.) The risk of suit in any given year does not increase with time.

Contrary to widespread belief, not all emergency physicians have been sued, even those over 55. The great majority of suits regarding emergency care involve clinicians who were board certified (74%), graduates of U.S. medical schools (71%), and were full-time clinicians (94%). (Acad Emerg Med 2010;17[5]:553.)

Some of the types of lawsuits EPs faced changed over the years. Orthopedic injuries and wound care issues used to be missed foreign bodies and tendon lacerations, but now is fracture mismanagement. Missed ectopic pregnancies do not seem to be a factor, presumably because of widespread and accurate pregnancy testing of all women of childbearing age.

Dr. Glauser

Dr. Glauser

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