Recent Data on Claim-Prone MDs Carry Many Legal Implications for EDs
Only 2.3% of physicians account for almost 40% of malpractice lawsuits
EXECUTIVE SUMMARY
A tiny group of physicians accounts for almost 40% of malpractice claims, according to the authors of a recent study, but most continue to practice.
- Often, ED colleagues are in the best position to detect problems with care.
- Hospital leaders should look for repeated behaviors alleged in multiple cases.
- It is especially concerning if the EP settled multiple cases all with the same fact pattern.
Did an emergency physician (EP) leave the hospital or staffing group suddenly after facing multiple malpractice lawsuits? If so, the obvious concern is whether a possibly negligent EP is putting patients at risk somewhere else.
“The conventional wisdom is that physicians who accumulate troubling medico-legal track records tend to move to other places where patients and colleagues don’t know their reputation,” says David M. Studdert, LLB, ScD, a professor of medicine and law at Stanford University.
Recently, Studdert and colleagues studied whether this long-standing concern is true.1 They analyzed data from 480,894 physicians who had 68,956 paid claims from 2003 through 2015. The vast majority (89%) had no claims at all, and 8.8% had one. The remaining 2.3% had two or more claims, accounting for almost 40% of all claims.
The findings mirrored those of a 2016 study (on which Studdert worked, too) on characteristics of physicians with multiple malpractice claims.2 In both studies, a very small group of physicians accounted for a disproportionately large share of lawsuits. “We wanted to learn more about these ‘frequent fliers,’ particularly what happens to their practices over time,” Studdert says.
Moving out of state used to allow claim-prone physicians to start with a clean slate when applying for a license or credential. “In the late 1980s, there was such deep concern about this kind of behavior, and the threat it posed to the public, that Congress intervened,” Studdert notes. The result was the National Practitioner Data Bank (NPDB), which requires reporting of malpractice payouts. Facilities are required to query the NPDB before granting privileges or hiring a physician. “It’s clearly harder for physicians with bad records to escape their past than it once was,” Studdert offers.
This might explain the study’s finding that physicians with multiple malpractice claims do not relocate geographically any more often than their peers with no claims. “Frequent fliers were no more likely than physicians who did not experience claims to pick up and relocate for a fresh start elsewhere,” Studdert says.
Physicians who accumulate claims are more likely than their peers to stop practicing medicine. “Nonetheless, the vast majority of them don’t,” Studdert adds.
More than 90% of physicians who racked up five or more paid claims continued to practice. “That is concerning,” Studdert says. “Repeated paid claims against a practitioner are an important signal of patient safety risk.”
Regulators, insurance companies, hospitals, and emergency medicine practice groups that hire or credential physicians all play a role in addressing this risk. “The more we learn about claim-prone practitioners, the clearer this imperative becomes,” Studdert says.
Often, colleagues are in the best position to detect problems with care, Studdert adds “This is particularly true in highly collaborative environments like EDs.”
Explore Med/Mal History
During the credentialing process, EPs are asked about any lawsuits or judgments against them. The credentialing committee considers whether to allow the request for privileges to continue to the medical executive committee.
“The medical staff office also assists with verification of credentials and clarifying if the license is restricted or not,” says Tiffany S. Hackett, MD, MBA, an EP at Good Samaritan Hospital and director of leadership at Vituity, a Emeryville, CA-based provider of medical staffing services.
The process of identifying new legal action and credential verification occurs every two years. Hospital bylaws also generally require EPs to report any new legal action to the hospital and medical executive committee.
“There should be a compelling reason to justify someone being sued repeatedly having privileges extended or renewed,” Hackett says.
Of course, multiple lawsuits against an EP do not necessarily mean malpractice occurred. The mere fact that an EP was sued “should not and does not automatically prevent someone from being privileged,” Hackett notes. “Rather, that fact should give credentialers pause and lead them to find out more.”
Sometimes, EPs are named in lawsuits just because they were on shift at the time of the plaintiff’s ED visit, even though they were in no way involved in the plaintiff’s care. Similarly, a patient’s bad outcome on an inpatient floor might have had nothing to do with the care provided in the ED. Typically, until discovery proves otherwise, everyone involved in the patient’s care is named. In some cases, baseless claims are settled because the potential for damages is high, necessitating a NPDB report. “Other times, the litigation costs far outweigh a settlement,” Hackett adds.
EPs are “ripe targets for disaffected patients disappointed with their medical outcomes. The bar to getting sued is very low,” notes David S. Waxman, JD, an attorney in the Chicago office of Saul Ewing Arnstein & Lehr. Even if a case is thrown out at the most preliminary stage, any EP named is required to report it when seeking insurance or staff privileges. Still, the facts behind any EP named in multiple cases are worthy of investigation. Any provider’s malpractice history likely is discoverable. “Thus, a hospital should always have a detailed understanding of when and why its physicians are named in suits,” Waxman adds.
Similar Allegations Worrisome
If an EP defendant’s concerning malpractice history becomes an issue during litigation, it means the hospital also is legally exposed. Plaintiff attorneys can explore whether the hospital’s medical executive committee carried out due diligence in sorting out the facts behind frequent claims. “Lack of documentation of a thorough vetting process by the medical staff may put the hospital at risk,” Hackett says.
Hospital leaders should be on the lookout for repeated behaviors alleged in multiple cases, Waxman says. The EP may have failed to administer a certain medication or failed to recognize a particular condition that requires referral to a specialist. If troublesome practices are detected, “QA and risk management should be involved, but in a manner that preserves confidentiality and/or privilege,” Waxman offers.
Multiple settlements are especially concerning. “Generally speaking, more than bad luck is involved,” Waxman says. Many previous payouts by the EP defendant can shift the focus to the hospital. “It means that on different occasions, someone — whether a hospital, the insurer, or a jury — has decided that the care provided by that physician could be sufficiently challenged to justify payment,” Waxman says.
For hospitals or ED groups, it is legally problematic if an EP’s previous lawsuits demonstrated the same fact pattern. “The plaintiff could claim there was sufficient notice that there was something about the care being provided by that particular physician that was potentially endangering patients and required some type of intervention,” Waxman explains. For instance, multiple successful lawsuits alleging the EP misdiagnosed myocardial infarction or stroke are red flags.
“The hospital’s failure to take action on that physician’s privileges could result in a negligent credentialing claim against it,” Waxman warns.
That litigation history becomes admissible in any future case involving the hospital’s credentialing decisions. For this reason, says Waxman, “it is incumbent upon a hospital to sift through the noise of the inventory of lawsuits against it and its physicians and discover where true quality of care issues may leave it exposed.”
REFERENCES
- Studdert DM, Spittal MJ, Zhang Y, et al. Changes in practice among physicians with malpractice claims. N Engl J Med 2019; 380:1247-1255.
- Studdert DM, Bismark MM, Mello MM, et al. Prevalence and characteristics of physicians prone to malpractice claims. N Engl J Med 2016;374:354-362.
Often, ED colleagues are in the best position to detect problems with care. Hospital leaders should look for repeated behaviors alleged in multiple cases.
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