More than two decades ago (while I was practicing obstetrics), I was sued. To this day, I am upset; moreover, I remember the details of the case as if it happened yesterday: A patient was in spontaneous labor at term and the baby was head down (vertex), however, instead of the head presenting in a flexed position so that the chin was “tucked under” it was a face presentation and the head was extended. I waited for labor to progress and ruptured the membranes in the hope that as usual the baby’s head would flex. It didn’t, and since this position would not permit a simple vaginal delivery, I performed a cesarean section and delivered a vibrant, lustily crying baby girl. Mother and baby went home in the usual time without any complications. Two years later, the mother reported that her daughter was deaf. A diagnosis of congenital deafness was made and I was subsequently sued… with the claim that had I performed the C section earlier, the baby’s hearing would not have been affected. That’s the story. But, it’s not the end.
The attorney for the plaintiff stated that the injury was so significant that he would get more money from a jury than the amount for which I, at that time, had coverage. Moreover, the insurance company did not want to go through the expense of a trial, especially with that particular attorney. (He lectured at conferences for personal injury attorneys that the cause of an injury was not the major issue for pursuing cases, the degree of injury was the major ‘let’s sue’ imperative.) My malpractice insurance company pressured me to settle on what it felt was a nominal amount. I reluctantly agreed but felt depressed and humiliated. I almost stopped practicing obstetrics. The joy of following women through their pregnancies and deliveries was now tempered with a concern that no matter what I did right, their obstetrical outcome could be perceived as wrong. Oh, and my premiums went up for several years.
This confession of litigious dismay is one I have never shared. But when I saw the article in the August 18th issue of The New England Journal of Medicine titled, “Malpractice Risk According to Physician Specialty”, I had a medical management flashback.
The authors analyzed malpractice data from 1991 through 2005 for all physicians who were covered by a large professional liability insurer with a nationwide client base of 40,916 physicians and 233,738 physicians’ years of coverage. They reported the proportion of physicians who had malpractice claims in a year, the claims leading to payment for the plaintiffs and the size of these payments. This data was used to estimate the risk of ever being sued among physicians in high and low-risk specialties.
As expected, the highest-risk specialty for malpractice suits was neurosurgery. Next came thoracic-cardiovascular surgery, then general surgery, plastic surgery, gastroenterology (probably as a result of perforations during procedures) and following that… obstetrics and gynecology. (We were 5th.) However, once a physician stops delivering babies and practices gynecology only, the risk goes down and becomes 12th on the list. (Reassuring for me in my present practice). The specialty that had the least suits was psychiatry. (So seeking professional advice on my previous angst would not put said professional at risk!).
Across specialties, 7.4% of physicians annually faced a malpractice claim and 1.6% made an indemnity payment. Again this varied according to specialty from 19.1% in neurosurgery, 18.9% in thoracic-cardiovascular surgery, 12% in obstetrics and gynecology and 2.5% in psychiatry. Across all the specialties the mean indemnity payment was $274,887, but the highest payment for awards went to pathologists (for what I assume was the wrong diagnosis).
Now to cumulative risk for those of us who continue to practice into our 40′s (which barely takes us past our specialty training): Roughly 55% of physicians in internal medicine and its subspecialties were projected to face a malpractice claim by the age of 45 years and 89% by the age of 65. This number rose to 80% of physicians in surgical specialties and 74% of obstetricians and gynecologists by the age of 45. (I guess I shouldn’t have felt singled out.)
The authors projected that the proportion of physicians facing a malpractice claim by the age of 65 was 99% for those in high-risk specialties (basically the surgical specialties) and 75% of physicians in low-risk specialties..
The career risk of making an indemnity payment (i.e. the plaintiff wins and is awarded damages) was however less: roughly 5% for physicians in low-risk specialties and 33% for high-risk specialists by the age of 45. This rose to 19% and 71% respectively by the age of 65.
The authors then went on to make a statement that I feel applies to my experience and that of so many of my colleagues. “Physicians can insure against indemnity payments through malpractice insurance, but they cannot insure against the indirect cost of litigation, such as time, stress, added work, and reputational damage.” These numbers certainly explain why so many physicians practice defensive medicine. Obviously, this is not cost effective for our society, our national and personal budgets. The authors of this well researched article made no recommendations. Frankly, neither can I… except to say that we should keep as up-to-date as possible on evidenced based practices.