Studies point out legal risk in urology, headaches

Two recent studies highlight the risk of malpractice in urology and headache treatment, suggesting that experience offers no protection against being sued and that prescribing certain medications can make the doctor a target of lawsuits.

In one study, a urologist found no correlation between experience and the likelihood of being sued for malpractice.1 George W. Kaplan, MD, a urologist at Children's Hospital in San Diego, conducted the study after trying to console a younger colleague who was being sued for malpractice. The younger doctor took the lawsuit as a challenge to his competence and worried that perhaps it meant he was too inexperienced to be a good doctor. Kaplan tried to tell him otherwise, but he didn't have any evidence to back up what he was saying.

Experience is not a factor

Kaplan decided to conduct a survey to determine how a doctor's experience affected his chances of being sued for malpractice. He contacted 110 urologists listed in The Best Doctors in America, and 91 responded to the survey. Of those, 70 (77%) had been sued, with an average of 2.6 claims per physician. Forty-four percent of the claims resulted in payment to the plaintiff. Those were considered the experienced urologists.

For comparison, he also surveyed 246 urologists who were applying for recertification by the American Board of Urology in 1996, classifying them as less experienced. He found that 49% reported claims against them, with an average of 1.9 claims per physician. Twenty-nine percent of the closed claims resulted in payment to the plaintiff.

Kaplan concludes that most urologists can expect to be sued at least twice during their careers. No direct or inverse correlation seems to exist between professional reputation and the incidence of being sued, he says.

"This isn't something I've heard risk managers address," he tells Healthcare Risk Management. "This is information I've never heard before. We're usually just told that urology is a relatively low risk surgical specialty, and no one gives you an idea of how frequently it happens."

Kaplan, in practice for 30 years, has been sued. He says his own experience and the study results suggest that experience and skill are no protection against a malpractice suit. Risk managers and the most experienced physicians may know that, but Kaplan says it can be an important message to pass on to younger doctors.

"They need to know that it's likely to happen to them at some time, and they need to be emotionally prepared," Kaplan says. "The legal system immediately places you in isolation once there's a lawsuit, with attorneys telling you not to discuss it with anyone. For some people, that is very difficult to deal with. The point is that you're not alone."

In the other study, a doctor found that prescribing some medications for chronic headaches can increase the risk of being sued for malpractice.2 Gary McAbee, DO, JD, a physician at the University of Medi cine and Dentistry of New Jersey in Stratford, says any physician prescribing medications for the treatment of chronic headache should be careful to discuss the risks and benefits of those medications. It also is important to document informed consent carefully, he says.

Discussions with the patient should include the potential for physical dependence, psychol ogical dependence, addiction, and analgesic rebound syndrome following discontinuation after excessive use.

"From an analysis of several recent databases, the risk of medical malpractice related to the prescription of analgesics for pain and headache relief is becoming increasingly important," McAbee says. He also points out that the physician may be more at risk from medication prescriptions because the "learned intermediary" doctrine protects the pharmaceutical manufacturer and pharmacist from liability.

References

1. Kaplan GW. Malpractice risks for urologists. Urology 1998; 51:183-185.

2. McAbee GN. Malpractice risks associated with prescribing medication for chronic headaches. Headache 1998; 38:53-55.