___________________________________________________________________________ Risk Management
Overall rates of medical malpractice claims declined between 2010 and 2020. The same trend occurred in the number of paid malpractice claims and the average compensation ( Figure 1 and Figure 2 ) [12]. In 2023, 50,404 malpractice claims were paid in the United States, with the compensation totaling more than $4.8 billion [12]. It has been argued that malpractice claims represent a substantial factor in rising healthcare costs. However, estimates for 2010 demonstrate that the total costs related to malpractice claims (compensation plus administrative costs) represented only 0.23% (range: 0.13% to 0.33%) of the $2.8 trillion (range: $2.6 trillion to $3 trillion) spent on health care in the United States that year [22]. The average compensation varies widely according to geography, type of injury, and physician specialty. In 2023, the average compensation ranged from $3.14 million (North Dakota) to $616 million (New York) [12]. Total compensation also varies considerably. In 2023, compensations in New York State accounted for 11% of all payments that year in the United States, and the top six states (New York, Pennsylvania, New Jersey, Illinois, Florida, and California) accounted for more than half of all 2023 compensation payments [12]. Claims payments are typically lowest for “insignificant injury” (average of $35,605 in 2022) and highest for quadriplegia, brain damage, or lifelong care (average of $939,475 in 2022) [23]. Of 24 specialties, general and family medicine ranks 18th in mean compensation (approximately $290,698) and internal medicine ranks 14th (approximately $318,071) [5]. Malpractice draws a great deal of attention by the public at large, but the actual number of malpractice claims that are filed is lower than the number of individuals who seek legal advice about a medical issue, and the number of claims that are won is still lower. One study found that in closed claims between 2016 and 2018, 65% were dropped, dismissed, or withdrawn. In addition, only 6% of claims were decided by a trial verdict, and of these, 89% were won by the defendant [24]. Additionally, a 2021 survey of physicians with a malpractice claim indicated that the result of the lawsuit was settled before trial (33%); dismissed within first few months (13%); verdict in physician’s favor (10%); ongoing or in process (7%); dismissed prior to settling (6%); dismissed by court (6%); dismissed prior to trial (6%); voluntarily dismissed by plaintiff prior to trial (6%); verdict in plaintiff’s favor (2%); and settled at trial (2%) [4]. The primary goals of the U.S. medical malpractice system are to compensate individuals who have been harmed through medical negligence, to hold a responsible individual accountable, and to provide deterrence to unsafe medical practices or medical errors [8; 25]. (The AMA defines a medical error as an “unintended act or omission, or a flawed system or plan, that harms or has the potential to harm a patient” [26].) According to the 2000 landmark Institute of Medicine report, To Err is Human: Building a Safer Health System , 44,000 to 98,000 deaths are caused by medical errors in U.S. hospitals each year, with more than 7,000 of those deaths attributable to medication errors [11]. In addition, a national survey
conducted in 2017 indicated that 21% of patients personally experienced a medical error, and 31% have personally been involved in the care of someone who has experienced an error. Combined, 41% of individuals surveyed experienced or were involved in a medical error [27]. However, the true number of adverse outcomes attributable to medical errors or negligence is difficult to determine. In a large study of hospital discharge records and malpractice claims, researchers determined that only 17% of claims involved an injury caused by medical negligence and that there were 7.6 times as many negligent injuries as there were claims, with only 2% of negligent injures resulting in claims [28]. A later study of 1,452 closed malpractice claims demonstrated that 37% did not involve a medical error, and the findings of another study indicated that more than three-quarters of 26,126 malpractice claims against primary care physicians were not considered to involve negligence [2; 3]. A separate analysis of four major studies on lethal medical errors indicated that in 2013 there were 251,454 preventable deaths due to medical error [29]. However, this was quickly debated and an estimate of 174,901 preventable deaths was given after adjusting for perceived biases [30]. In either case, medical error was still found to be the third leading cause of death in the United States [29; 30]. These results show the difficulty in determining the true number of medical errors and indicate that most patients who sustain a medical injury as a result of medical negligence do not sue and that a substantial number of claims do not involve negligence, which leaves the primary goals of the malpractice system unmet [2; 28; 31; 32]. Calls for reform of the malpractice system have been made in light of these findings, and several organizations, including the AMA, have taken steps toward medical liability reform, with the goal of creating an accurate and fair liability process, while ensuring patient access to physicians and a full range of healthcare services [24]. KEY CONCEPTS IN MALPRACTICE Medical malpractice is processed in the civil court system or according to tort law. Overall, the civil court system provides a mechanism for an individual or group to recover damages when a tort (derived from the French word for “wrong”) is committed against a person or property. Torts are classified as either intentional or negligent. Several intentional torts may be committed by physicians, including assault and battery (e.g., operating on a patient without informed consent), false imprisonment (e.g., forcing a patient to stay in the office until a bill is paid), and fraud (e.g., claiming cure when the physician knows cure is not possible) [33]. A negligent tort involves the omission or commission of an act that a reasonably prudent person would or would not do under given circumstances [34]. The statutes of limitations for medical malpractice vary according to the state, with many states having statutes that vary by cause of action and special rules for minors. In general, a medical claim must be filed within 1 to 5 years after the malpractice occurred or after the alleged injury was discovered if it was not immediately evident.
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MDMI1826
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