The New England Journal of Medicine, a well-respected medical periodical, published a study a couple of weeks ago out of Harvard Medical School. The title of the article was “Malpractice Risk According to Physician Specialty” and purported to examine the data on the proportion of physicians who face malpractice risk according to specialty.

The New England Journal of Medicine, a well-respected medical periodical, published a study a couple of weeks ago out of Harvard Medical School. The title of the article was “Malpractice Risk According to Physician Specialty” and purported to examine the data on the proportion of physicians who face malpractice risk according to specialty.

This study followed a more significant and wide-reaching study from Harvard in 2006 entitled “Claims, Errors and Compensation Payments in Medical Malpractice Litigation.”    

The authors of the more recent study acknowledged the limitations of their study. They examined the claim files of one larger physician-owned malpractice insurer. In the 2006 study, the researchers examined five malpractice insurance companies in four regions of the United States, that covered 33,000 physicians, 61 acute care hospitals and 428 outpatient facilities. In the recent study, the researchers examined data for 15 years beginning in 1991.

Several interesting conclusions are made in the study of malpractice risk according to specialty. First, there is significant variation in the likelihood of malpractice risks and indemnity payments among medical specialties. Secondly, the researchers concluded that although the “cumulative risk” of facing a malpractice claim is high in all specialties of medicine, most claims do not lead to payments to plaintiffs. The high risk specialties of neurosurgery, obstetrics and thoracic-cardiovascular surgery were most vulnerable to claims. Pediatrics actually had the highest risk of a claim according to the study.

The study concluded that nearly all physicians in high-risk specialties will face at least one claim during their career, but acknowledged that a substantial majority will never have to make a payment of a claim. The authors concluded that their results “may speak to why physicians consistently report concern over malpractice and the intense pressure to practice defensive medicine despite evidence that the scope of defensive medicine is modest.”

This most recent study on the malpractice risk according to specialty has one very significant flaw that is not acknowledged by the authors. The authors examined claims as opposed to actual lawsuits. While acknowledging that most claims do not result in any payment, the authors of the 2011 study failed to define what constituted a claim.

A recent event in our office may explain this phenomenon. I do handle medical malpractice cases, and I explain to every client who calls that I actually pursue a fraction of all cases we investigate. I suspect that substantially less than 1 percent of all cases we investigate actually result in litigation.  

We recently requested records from a surgeon in central Missouri in the process of an investigation. The surgeon actually called our office and asked if he should contact his malpractice insurer. My paralegal informed him that we were only investigating a possible claim and it was premature to make any claim at this point. I suspect that the doctor nonetheless contacted his insurer. Perhaps he told the insurer a claim was being made. After reviewing his records, we determined that there was no basis for pursuing the claim and informed the client accordingly. Thus, no claim was ever made. Requesting a physician’s records does not mean a claim is being made.

The most recent study admits that its estimates only “provide a glimpse into U.S. malpractice risk among physician specialties. The authors also reference the 2006 Harvard study that was much more comprehensive and thorough.

In the 2006 Harvard study, the authors found most claims against health care providers were meritorious with 97 percent involving medical injury. The doctors performing this study found that 73 percent of all claims had outcomes in accordance with their merit. The researchers concluded that only a small fraction (.4 percent) of claims lacked documented injuries and that non-error claims were twice as likely to go to trial as claims based on actual errors.

The authors concluded that the “profile of non-error claims that we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in which their chances of winning are reasonable and prospective returns in the event of a win are high.” Their findings “underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultations with experts, and sharing of information that litigation triggers.

They conclude by stating that portraits of a malpractice systems being stricken with frivolous litigation are “overblown.” They also state that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating meritorious claims. That one in six claims involved error and received no payment wa s concerning to the authors because the plaintiffs must “shoulder the substantial economic and noneconomic burdens from preventable injury.”

Each year 98,000 Americans die because of preventable medical errors and hundreds of thousands of people are injured from such errors. It would be nice if the politicians focused on the real problem, which is preventing death and misery from preventable medical errors, rather than portraying the system as broken.

The forces of darkness are attempting to perpetuate a myth that is not based on the evidence. I suspect if you look at the contributor lists of the politicians attempting to take away the rights of people harmed by medical errors that you might see those forces of darkness listed.