Fear and Loathing of Malpractice Litigation

By Paul Weber, JD

Mr. Weber is Vice President of OMIC’s Risk Management/ Legal Department.

Digest, Fall 2003

To the view the tables referenced in this article, go to http://www.omic.com/new/digest/DigestFall_03.pdf

Media coverage of the impact of malpractice litigation typically focuses on multimillion dollar jury awards, skyrocketing insurance premiums,and physicians who decide to relocate or retire early because an unfavorable malpractice climate has made it too expensive to continue practicing in their state. Regrettably, scant coverage is given to the pervasive negative impact that fear of litigation has on the decision making of physicians and the delivery of health care services.

In March 2002, a Harris poll was conducted by phone and online of more than 300 physicians to provide insight into the impact that fear of litigation has on the practice of medicine and the delivery of medical care. (The results of the Harris poll, as well as other polls relating to the medical liability crisis, can be found on the Common Good web site at http://www.commongood.org/blog/c/health-care)

OMIC interspersed many of the Harris poll questions throughout its recent Mock Litigation interactive presentation before more than 230 ophthalmologists in Anaheim. The results of OMIC’s informal “poll” are strikingly similar to the Harris poll. Both polls indicate that fear of litigation influences all aspects of health care decision making, from ordering tests, prescribing medications, and making referrals to a reluctance to discuss adverse events with colleagues.

That many medical professionals’ behavior is clearly influenced by their fear of litigation can perhaps be explained by the finding that the overwhelming majority of physicians (85% in the OMIC poll and 83% in the Harris poll) do not believe they can trust the current system of justice to achieve a reasonable result if they are sued. This widespread mistrust contributes to feelings of apprehension of possible lawsuits and encourages the practice of defensive medicine rather than care based on medical need.

The Harris and OMIC polls asked the following question concerning three areas of medical care: “Based on your experience, have you noticed fear of malpractice liability causing physicians to (1) order more tests; (2) prescribe more medications; and (3) make more referrals than they would based on professional judgment of what is medically needed?”

As Figure 1 shows, both polls overwhelmingly demonstrate that the omnipresent fear of having to deal with litigation results in excessive treatment. Not surprisingly, physicians were nearly in unanimous agreement in both polls (99% of OMIC respondents; 94% of Harris respondents) that these extra tests, medications, and referrals contribute in a significant way to health care costs. The fact is that every time a test is ordered or a treatment is rendered that is not medically necessary, health care funds are diverted away from a patient who really needs the care, while the patient undergoing the test or receiving the treatment is exposed to an unnecessary risk.

A paradox can be observed here. Even though physicians are increasingly using tests and referrals to avoid malpractice litigation, claims and lawsuits continue to rise. As Figure 2 shows, OMIC claims frequency has been rising steadily and substantially since 1998.

Apparently for OMIC insureds, more treatment does not result in fewer claims. Indeed, as Figure 3 demonstrates, some of the OMIC claims that have resulted in the largest payouts to patients are in fact related to allegations of failure to order a test leading to failure or delay in diagnosis or allegations of failure to make a timely referral leading to delayed treatment. The number of large payout cases ($500K and above) has increased severely since 1998. From the company’s inception in 1987 to 1998, there were only five large losses; there have been ten large losses in the ensuing five years.

The increase in frequency and severity of OMIC claims is not due to a decline in the quality of ophthalmic care. It remains constant that year after year, the vast majority of OMIC claims (over 78%) are disposed of without an indemnity payment to the patient. It is commonly accepted that most claims and lawsuits are attributable to a combination of unmet patient expectations regarding a procedure or course of treatment and poor doctor-patient communication. Throw the following technological and societal dynamics into the mix and you have a recipe for claims:

Improved outcomes leading to unrealistic patient expectations.
A large population of lawyers practicing in a litigious society.
HMOs and other managed care entities contributing to real and perceived perceptions of problems with access to health care.

As a result of the current dysfunctional litigation system, there is an unfortunate sense of futility among physicians that there is little they can do to avoid being named in a malpractice suit. This sentiment is often expressed by OMIC insureds in surveys conducted by the Claims Department after a claim or lawsuit has been closed. One of the comments most frequently heard by insureds is that the claim was frivolous and there was nothing they could have done to avoid it. The following comment by one insured sums up the frustration felt by many with a tort system that seems unjust. “It appears that plaintiffs have unlimited rights and the accused have no rights. In the eyes of Medicare, state licensing boards, and hospital boards, doctors are presumed guilty and must prove their innocence. Reports of staggering malpractice jury awards add to the fear that regardless of the facts, regardless of guilt or innocence, doctors are at risk of losing everything they own with any lawsuit brought against them. These outrageous awards also encourage a ‘win the lottery’type of mentality on the part of plaintiffs and a feeding frenzy for lawyers hungry for cases. The current liability system is terribly unfair to doctors and in no way helps us take better care of our patients, which should be our primary goal as physicians.”

Physicians in both the OMIC and Harris polls agree that 95% of malpractice claims arise as a result of adverse results rather than actual error. However, in a litigious society, the priority is to find “fault” and not to be unduly concerned with whether it was an “adverse result” or an “error.” An emerging patient safety movement is critical of the current system of health care delivery for being overly complex,ineffective, and intrinsically hazardous. It proposes shifting the focus of malpractice litigation from finding fault to scientific and analytical review of medical errors with the goal of preventing such errors in the future.

The patient safety movement understands that as medical care becomes increasingly complex, there are many opportunities to improve quality and safety and reduce costs. Failures of the system occur as a result of a combination of multiple small failures, each individually insufficient to cause an accident but when combined, capable of leading to catastrophic injuries. Since fault is not the focus of the patient safety movement, it fosters among health care providers an open and ongoing analysis of the latent and active errors that contribute to incidents and near misses. There already exists in medicine a collaborative inclination to openly discuss and consider ways to reduce errors. Both polls found that physicians strongly agree that open communication and analysis of incidents, adverse events, and errors helps them avoid similar mistakes. However, a significant barrier to information sharing among physicians is the fear that this information will somehow be used to prepare a lawsuit against them.

There is no one quick fix to remedy the negative impact and detrimental effects that fear of litigation has wrought on health care providers and, consequently, on patient care. Reversing this trend will require a strong, sustained effort to raise awareness among patients and providers of the seriousness of the situation and the efforts being made in health care to improve patient safety.

Figure 3

State Indemnity Year Allegation
RI $500K 2003 Failure to diagnose brain tumor
CT $500K 2003 Failure to diagnose retinal melanoma (patient died)
IL $1M 2002 Steroid mismanagement (joint degeneration)
TX $850K 2002 Failure to diagnose lung cancer
TX $500K 2002 Negligent retrobulbar to treat pain
TX $500K 2002 Numbness OS post retrobulbar to treat pain
AZ $1.8M 2001 Failure to diagnose/treat pediatric glaucoma
IL $1M 1999 Failure to treat pediatric corneal ulcer in the ER
MA $1M 1999 Stroke post strabismus surgery
AZ $740K 1999 Negligent administration of marcaine via catheter (patient died)
GA $575K 1996 ROP lost to follow up
TX $735K 1995 Failure to diagnose endophthalmitis post cataract surgery
FL $656K 1995 Corneal perforation during blepharoplasty
FL $500K 1995 Garamycin toxicity causing blindness
FL $790K 1993 Failure to diagnose pituitary tumor (patient died)