Few doctors are sanctioned and researchers suggest action should be taken to protect patients from unsafe care delivered by outliers.
This article was updated on January 18, 2017 for clarification purposes.
Fewer than 2% of all physicians practicing over a 25-year study period ending in 2015 were responsible for half of all malpractice dollars paid out, a total of more than $41 billion, according to a new look at the data.
At the same time, only a small percentage of those whose data was reported to the National Practitioner Data Bank (NPDB) lost clinical privileges or were subject to action by licensing boards. The results of the study, which was led by a former associate director for research and disputes at NPDB, were published online by the Journal of Patient Safety.
The study relied on the NPDB's public use file.
The analysis supports earlier findings that looked at ten years of NPDB data. That Stanford study, released a year ago, found that 1% of doctors were responsible for 32% of paid claims.
Both studies found that doctors who paid multiple claims were more likely to pay additional claims than those who paid once.
The authors of the new study suggest that action needs to be taken to protect patients from unsafe care delivered by "outlier physicians."
The findings emerge at a time when the federal approach to malpractice is likely to shift with the incoming Republican administration. While changes to medical liability rules tend to occur at the state level, health regulators in the Obama administration have seen malpractice as reflection of quality of care.
The Affordable Care Act included a $25 million Patient Safety and Medical Liability (PSML) initiative. The AHRQ notes that the program reflects "the view that medical liability and patient safety are fundamentally linked."
NPDB on Payouts
An assessment of the programs concluded that they "encountered challenges—some expected and others unexpected"—but had many accomplishments.
Whether that approach will continue under the new administration is unclear, as many Republican lawmakers view malpractice in legal rather than medical terms.
Tom Price, MD, the nominee for Secretary of Health and Human Services, has said that "lawsuit abuse" and defensive medicine are major drivers of health care costs.
He supported a bill in 2011 called "The Health Care Professionals Protection Act" that would have required hospitals to hold hearings before reporting a malpractice claim to the data bank. Price also supports the GOP "A Better Way" reform proposal, which calls for tort reform and "higher standards of evidence" for malpractice claims.
The data bank study reflects a different perspective: "There is evidence that most adverse events result from individual errors and that most malpractice suits with payouts reflect both patient injury and error."
The researchers looked at 321,682 payments made from 1990 to 2015. During that period, roughly $83 billion was paid out in malpractice claims.
The claims were parsed to determine whether "clusters" of physicians are more likely to pay claims. One quarter of all claims were paid on behalf of 6,521 doctors—0.5% of all physicians. About half of all dollars paid out were paid by 1.8% of the group—22,511 doctors.
"If their payments could be substantially reduced or eliminated, it could make a major difference in the nation's total malpractice payout," the researchers wrote.
They found, however, that within that 1.8% group responsible for half the claims, 12.6% had an adverse licensure action reported to the NPDB, and 6.3% had a clinical privileges action reported.
The risk of a future malpractice report rose with each additional claim, according to the study. Also, physicians who paid large claims and one malpractice claim payout had a 74.5% chance of another payout, more than twice the rate for all physicians who had a single payout.
A Surgeon Turned Lawyer Weighs In
Larry Schlachter, MD, JD, is a former neurosurgeon and an attorney who says he turned to malpractice law after an injury to his hand.
His book, Malpractice: A Neurosurgeon Reveals How Our Health-care System Puts Patients at Risk, is more personal than revealing. Neither a policy tome nor an investigative report, it is the view of someone "with a doctor's heart" and a "lawyer's awareness that great harm is sometimes done by physicians to patients through narcissism, carelessness and ineptitude," he writes.
Schlachter contends that the malpractice system is heavily weighted in favor of doctors and insurance companies. The data bank study shows that little is being done to address the subset of errant doctors, he says.
He believes, however, that hospitals are "in a tough situation" when state medical boards fail to investigate and restrict doctors who pay multiple malpractice claims.
As a lawyer, he has not seen any malpractice cases that have been settled by formal "communication and resolution programs."
The AHRQ and others are studying that approach, where providers reveal errors and offer out-of-court settlements when appropriate. Schlachter says he is more likely to see hospitals taking the deny-and-defend approach.
Increasingly, however, he is being called upon to oversee cases that go into arbitration. Often the approach offers a quick, fair alternative to a trial, he says.
But it does not require the hospitals to admit to a shortfall in patient care.
"There has to be a cultural change… the hospital serves the community and the human beings that come into the hospitals are shareholders in their own healthcare," he says. "They have to be able to trust the hospital to be patient centered and take care of patients' needs first."
Tinker Ready is a contributing writer at HealthLeaders Media.