Most medical malpractice cases are still resolved in a courtroom—typically after years of preparation and personal torment. Yet, overall rates of paid medical malpractice claims among all physicians have been steadily decreasing over the past two decades, with reports showing decreases of 30% to 50% in paid claims since 2000.1-3 At the same time, while median payments and insurance premiums continued to increase until the mid-2000s, they now appear to have plateaued.1
None of these changes occurred in isolation. More than 30 states now have caps on noneconomic or total damages.2 As noted in part 1, since 2000, some states have enacted comprehensive tort reform.4 However, whether these changes in malpractice patterns can be attributed directly to specific policy changes remains a hotly contested issue.
Malpractice Risk in Emergency Medicine
To what extent do the trends in medical malpractice apply to emergency medicine (EM)? While emergency physicians’ (EPs’) perception of malpractice risk ranks higher than any other medical specialty,5 in a review of a large sample of malpractice claims from 1991 through 2005, EPs ranked in the middle among specialties with respect to annual risk of a malpractice claim.6 Moreover, the annual risk of a claim for EPs is just under 8%, compared to 7.4% for all physicians. Yet, for neurosurgery and cardiothoracic surgery—the specialties with the highest overall risk of malpractice claims—the annual risk approaches 20%.6 Regarding payout statistics, less than one-fifth of the claims against EPs resulted in payment.6 In a review of a separate insurance database of closed claims, EPs were named as the primary defendant in only 19% of cases.7
Despite the discrepancies between perceived risk and absolute risk of malpractice claims among EPs, malpractice lawsuits continue to affect the practice of EM. This is evidenced in several surveys, in which the majority of EP participants admitted to practicing “defensive medicine” by ordering tests that were felt to be unnecessary and did so in response to perceived malpractice risk.8-10 Perceived risk also accounts for the significant variation in decision-making in the ED with respect to diagnostic testing and hospitalization of patients.11 One would expect that lowering malpractice risk would result in less so-called unnecessary testing, but whether or not this is truly the case remains to be seen.
Effects of Malpractice Reform
A study by Waxman et al12 on the effects of significant malpractice tort reform in ED care in Texas, Georgia, and South Carolina found no difference in rates of imaging studies, charges, or patient admissions. Furthermore, legislation reform did not increase plaintiff onus to prove proximate “gross negligence” rather than simply a breach from “reasonably skillful and careful” medicine.12 These findings suggest that perception of malpractice risk might simply be serving as a proxy for physicians’ underlying risk tolerance, and be less subject to influence by external forces.
Areas Associated With Malpractice Risk
A number of closed-claim databases attempted to identify the characteristics of patient encounters that can lead to malpractice claims, including patient conditions and sources of error. Diagnostic errors have consistently been found to be the leading cause of malpractice claims, accounting for 28% to 65% of claims, followed by inappropriate management of medical treatment and improper performance of a procedure.7,13-16 A January 2016 benchmarking system report by CRICO Strategies found that 30% of 23,658 medical malpractice claims filed between 2009 through 2013 cited failures in communication as a factor.17 The report also revealed that among these failed communications, those that occurred between health care providers are more likely to result in payout compared to miscommunications between providers and patients.17 This report further noted 70% to 80% of claims closed without payment.7,16 Closed claims were significantly more likely to involve serious injuries or death.7,18 Leading conditions that resulted in claims include myocardial infarction, nonspecific chest pain, symptoms involving the abdomen or pelvis, appendicitis, and orthopedic injuries.7,13,16
Errors in diagnosis have been attributed to multiple factors in the ED. The two most common factors were failure to order tests and failure to perform an adequate history and physical examination, both of which contribute to rationalization of the practice of defensive medicine under the current tort system.13 Other significant factors associated with errors in diagnosis include misinterpretation of test results or imaging studies and failure to obtain an appropriate consultation. Processes contributing to each of these potential errors include mistakes in judgment, lack of knowledge, miscommunication, and insufficient documentation (Table).15
Strategies for Reducing Malpractice Risk
In part 1, we listed several strategies EPs could adopt to help reduce malpractice risk. In this section, we will discuss in further detail how these strategies help mitigate malpractice claims.