By Jay Kumar
The last decade has seen a decline in the number of medical malpractice claims in the United States, which can be attributed to tort reform and improved quality of care, according to experts on a panel at the American Society for Health Care Risk Management’s (ASHRM) annual conference in Baltimore.
Looking at the findings of a 2018 benchmarking report from CRICO Strategies, there were 124,000 malpractice claims made from 2007 to 2016, said Gretchen Ruoff, MPH, CPHRM, CPPS, senior program director for patient safety at CRICO Strategies. A division of The Risk Management Foundation of the Harvard Medical Institutions Incorporated, CRICO Strategies published its report Medical Malpractice in America earlier this year and made it available for free download.
“We really feel this is a true representation of medical malpractice in America,” said Ruoff, noting that the medical professional liability case rate decreased 27% over the 10-year span. “There’s been an overall drop in risks across the country.”
Tort reform helped drive down the number of cases, said Paul Greve, JD, RPLU, DFASHRM, senior director, healthcare risk solutions, Markel Assurance.
When looking at the number of defendants per 100 physicians, the steepest decline was in OB-GYN claims with a 44% drop over 10 years, Ruoff said. The drop is possibly attributable to focused safety efforts in labor & delivery over the last 15 years, but more research is needed, she added.
A second report released by The Doctors Company examined rates of physician claims from 2006 to 2018. Ruoff said expenses and indemnity payments rose as expected. Case management expenses increased over time, outpacing inflation, Ruoff said.
From a claims perspective, the time to resolution has decreased, but experts have become increasingly expensive and costs have gone up for physician support and trial preparation, she said.
The proportion of cases naming multiple defendants is growing, with the study finding the following:
- Cases with two-plus defendants increased, adding expense costs to every case (31% in 2007 to 37% in 2018)
- 260 additional defendants per year since 2007
- Average expenses per defendant is $25,000
- $6.5 million in additional expenses per year since 2007
Average expenses are rising the fastest for zero-indemnity cases, going up by 4.7% per year. Contributing factors may include provider protection-focused philosophies of resourcing vigorous defense for cases without merit, and an unwillingness to pay on cases without malpractice.
Average indemnity payments increased 3% annually. In line with expectations, increase outpaced CPI by 1.3% per year (but slower than medical inflation)
Ruoff said cases closed with indemnity payments under $1 million are going down, while payments over $1 million are up 6%.
Growth is fastest in the $3 million to $11 million layer, growing from 17% to 22% over the last decade. Growth is driven by the volume of these cases, not increase in the average severity per layer, she added.
The CRICO report findings identified several general trends that impacted medical professional liability over the 2007-2016 period, including hospitals purchasing physician practices/employment model, Greve said. Hospital merger and acquisition activity increased notably, and the rapid rise of hospital/healthcare costs has led to a disdain of healthcare organizations, he noted.
“Our hospitals and hospital systems are being viewed, especially by juries, as sitting on a big pot of money,” said Greve. “This corporatization has caused a deterioration of goodwill toward hospitals,” which explains why we’re seeing some of these mega-verdicts.
On the physician side, “we are seeing groups grow larger and larger,” said Darrell Ranum, JD, CPHRM, vice president, patient safety and risk management for The Doctors Company. There’s a concern about the influence of investor money on these groups, he added.
This is where high reliability helps, Ruoff said. Organizations are being encouraged to “change internal culture to have an impact on these big external things.”
The report also found that deeply coded cases provide actionable insights, said Ruoff. High-severity injuries are 41% more likely to lead to an indemnity payment. In addition, medical expenses for patients under 40 with grave injuries drive costs up.
The vast majority of cases stem from three categories: Surgical, medical, and diagnosis. Surgical cases are most prevalent, diagnosis is most costly, and medical treatment is becoming more common.
Forty-four percent of surgical cases involve ambulatory care patients, Ruoff said. Orthopedic procedures are most prevalent, with perforations/lacerations as the top injury category.
Ranum said The Doctors Company report had very similar findings to the CRICO report.
Ambulatory or day surgery cases comprised 54% of the cases, with hospital operating room cases at 46%.
“When we repeat studies a few years down the line, we’re seeing fewer cases, but repeat issues,” said Ranum.
Looking at diagnosis-related cases, the majority (30%) were led by missed/delayed cancer diagnoses, including breast, lung, colorectal, uterine and ovarian, and skin cancers, noted Ruoff.
Of a total of 55,377 closed claims in the CRICO claims database, 21% were diagnostic-error claims, said Greve. The median patient age was 49 and 51.7% of patients were female.
“It’s a pervasive and persistent problem,” he added.
The “big three” disease categories of claims were cancers (37.,8%), vascular events (22.8%), and infections (13.5%). They accounted for 61.7% of all diagnostic error claims. A majority of errors (71%) occurred in the ambulatory care setting.
Ruoff said cases with clinical judgment factors are most prevalent and they increase the odds of high-severity injury and high payment. Clinical judgment is the key component of missteps during assessment, testing, and follow up, she noted.
“The diagnosis of complications that occurred in surgery that were not recognized during surgery is a huge component,” said Ranum.
Using the data
Organizations must use this data to effect change, Ruoff said. “There’s safety in numbers,” she added. “Use numbers like this to collaborate and form patient safety strategies.”
Patient feedback is valuable, Ruoff said. Complaints can be indicators of faulty systems, provider-related behavior, and issues of provider well-being.
Greve recommended creating a list of resources: Insurance company materials, CRICO Strategies website (for algorithms, case studies, practice assessment and education resources), and specialty society websites.
Review information available to you, he said. While you don’t need to do quantitative analysis, you can look for evidence that should prompt further investigation. Then seek comparative perspective (via your patient safety organization and national medical professional liability claims data) for context and collaboration, Greve noted.
“Your data doesn’t have to be perfect,” he said.