Medical Malpractice and the Chest Physician*

CHEST Commentary Medical Malpractice and the Chest Physician* John M. Luce, MD, FCCP The US malpractice system is based on tort law, which holds physicians responsible for not harming patients intentionally or through negligence. Malpractice claims are brought against physicians from most medical disciplines in proportion to their numbers in practice and to the frequency with which they perform procedures. Claims against chest physicians most commonly allege injuries caused by the following: (1) errors in diagnosis, (2) improper performance of procedures, (3) failure to supervise or monitor care, (4) medication errors, and (5) failure to recognize the complications of treatment. Most of these injuries occur in hospitals, and many of the injured patients die. The social goals of the medical malpractice system include the following: (1) compensating patients injured through negligence, (2) exacting corrective justice, and (3) deterring unsafe practices by creating an economic incentive to take greater precautions. Some patients injured through negligence are compensated, but most are not. Claims are brought against some negligent physicians but also some who are not negligent, and being negligent does not guarantee that a claim will be brought. The deterrent effect of medical malpractice is unproven, and the malpractice system may prompt defensive medicine and increase health-care costs. And by stressing individual accountability, it conflicts with a systemsoriented approach to reducing medical errors. (CHEST 2008; 134:1044 1050) Key words: medical errors; medical malpractice; medical negligence; tort law Abbreviations: NPDB National Practitioner Data Bank; PIAA Physician Insurers Association of America; VA Department of Veterans Affairs Medical malpractice may be defined as the failure of a physician or other health-care professional to render proper professional services intentionally or through negligence, or without obtaining informed consent. Many American physicians, including those who practice cardiovascular surgery, cardiology, and pulmonary and critical care medicine, have had claims brought against them. Furthermore, many physicians review claims or serve as expert witnesses. Finally, the US medical malpractice system is a frequent topic of conversation, if not debate, even among physicians who are not actively involved in it. Yet few physicians *From the Division of Pulmonary and Critical Care Medicine, San Francisco General Hospital, San Francisco, CA. The author has no conflict of interest to disclose. Manuscript received March 12, 2008; revision accepted March 31, 2008. Reproduction of this article is prohibited without written permission from the American College of Chest Physicians (www.chestjournal. org/misc/reprints.shtml). Correspondence to: John M. Luce, MD, FCCP, Division of Pulmonary and Critical Care Medicine, San Francisco General Hospital, 1001 Potrero Ave, Room 5K1, San Francisco, CA 94110; e-mail: john.luce@sfdph.org DOI: 10.1378/chest.08-0697 understand how our malpractice system functions or have assessed whether it achieves social goals. To further understanding and aid in assessment, I have prepared this review. In it, I explore how the US For related article see page 1051 For editorial comment see page 901 medical malpractice system works, whether it meets social goals, how it affects patient safety, and how it might be improved. I draw from the published literature and my experience as the medical director of a hospital risk management program and as a claims reviewer and expert witness. Although my review may be relevant to practitioners in other disciplines, I focus when possible on academic- and community-based chest physicians, including those in training. The areas I explore are intended to complement those covered in a recent CHEST publication. 1 How the US Malpractice System Functions Involvement in Malpractice Claims In most malpractice claims, the plaintiff (eg, a patient or his or her family) alleges that the defen- 1044 Commentary

dant (eg, a physician or health-care institution) committed a tort that was either intentional or resulted from negligence. A tort is a civil wrong that violates an implicit and understood duty or social responsibility. Physicians are obligated to use their superior knowledge and skill to benefit and not harm patients. Although federal tort laws apply to claims brought against the government, including the Department of Veterans Affairs (VA), state tort laws generally govern how malpractice claims are resolved. 2 4 Plaintiffs vary in the reasons they file malpractice claims, but most were advised to do so by physicians and other knowledgeable acquaintances; have financial needs; believe they or their loved one would have no future because of injury; want an explanation for the injury; seek revenge; or are dissatisfied with communication with their physicians. 5,6 Although improving communications with patients seems intuitively likely to reduce malpractice claims, a randomized trial to determine whether good communications can reduce malpractice claims has never been conducted. Nevertheless, a study 7 of the communication behaviors of physicians stratified by years of practice and specialty demonstrated that physicians without a claims history spent more time on patient visits, educated patients more about their health problems, and solicited their opinions more frequently than did physicians with a history of claims. Although other practitioners may be liable for medical malpractice, individual physicians are the central defendants in most claims. 3 Some studies 8 suggest that a history of malpractice claims can be used to predict physicians against whom subsequent claims will be brought. Other studies 9 suggest the opposite. Physicians with a history of paid claims for injuries alleged by other patients are often the object of complaints from patients who do not bring malpractice claims. 10 Regardless of their accuracy in targeting individuals, claims data can be used to specify problem-prone clinical processes and to suggest interventions that may reduce negligence. 11 Payments of claims against physicians, including residents and fellows, are reported to state medical boards and the National Practitioner Data Bank (NPDB). 1,12 Physician specialties and information about plaintiff injuries are not reported to the NPDB, however, and there is no other national source of data regarding the malpractice history of chest physicians. Nevertheless, inferences can be drawn from data reported to the Physician Insurers Association of America (PIAA), a trade association of 50 liability insurance companies, also called physician mutuals, that are owned and operated by health professionals and collectively cover approximately 60% of physicians in private practice. Closed and paid claims by specialty reported to PIAA 13 from 1985 to 2007 are outlined in Table 1. In it, cardiovascular and thoracic surgeons are separated from other surgical subspecialists and general surgeons. Similarly, internal medicine subspecialists (including pulmonologists, rheumatologists, and other subspecialists), cardiologists (identified as cardiovascular diseases, nonsurgical), and gastroenterologists are listed separately from internal medicine specialists. Although some hospitalists also are listed separately, most probably are contained within the category of internal medicine. The data indicate that claims against obstetricians and gynecologists, general internists, general and family physicians, general surgeons, and orthopedists outnumber those against other specialists, in rough proportion to their numbers in practice and the frequency with which they perform procedures. Claims against cardiovascular and thoracic surgeons outnumber those against cardiologists. Claims against cardiologists outnumber those against internal medicine subspecialists, including pulmonologists, probably because the former perform more procedures. Negligence and the Standard of Care To prove negligence, the most common allegation in medical malpractice claims, the plaintiff must show, by a preponderance of the evidence ( 50% probability, a lower standard than the beyond a reasonable doubt standard used in evaluating a violent crime), the following: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty by failing to adhere to the standard of care expected of him or her, (3) the plaintiff suffered an injury, and (4) the injury was caused by the breach of duty. 1 4 Standard of care refers to the quality of care that would be expected of an ordinary or reasonable physician in the same specialty in a similar circumstance but not necessarily in the same locality. 14 The standard of care for residents and fellows traditionally was that of other trainees with similar experience. In most states today, however, resident physicians and fellows are held to the same standard of care as attending physicians in their respective specialties and should have a strong incentive to seek their oversight. Attending physicians may be held vicariously liable for the negligence of residents working with them or directly liable for inadequate supervision. 15 Allegations of inadequate supervision are increasingly common in claims in which trainees were judged to have played an important role. 16 Standards of care usually are defined by medical experts who profess knowledge in a given defendant s field. Fully one quarter of surveyed Maryland www.chestjournal.org CHEST / 134 / 5/ NOVEMBER, 2008 1045

Table 1 Claims and Indemnity Specialty Closed Claims, No. Paid Claims, No. Average Indemnity, $ Total Indemnity, $ Anesthesiology 9,229 2,833 219,884.54 622,932,908.00 Cardiovascular and thoracic surgery 7,278 1,614 214,487.06 346,182,118.00 Cardiovascular diseases, nonsurgical 4,378 747 249,456.71 186,344,163.00 Colon and rectal surgery 438 117 265,319.11 31,042,336.00 Dermatology 2,739 746 132,286.53 98,685,748.00 Emergency medicine 4,131 1,016 190,682.63 193,733,547.00 Gastroenterology 2,515 408 201,494.30 82,209,673.00 General and family practice 28,089 8,420 158,503.69 1,334,601,098.00 General surgery 25,187 8,070 176,061.57 1,420,816,891.00 Gynecology 2,832 790 152,277.32 120,299,079.00 Gynecology, nonsurgical 90 33 205,256.94 6,773,479.00 Hospitalist 44 7 296,792.86 2,077,550.00 Internal medicine 30,020 7,203 204,344.54 1,471,893,756.00 Internal medicine subspecialties 3,708 547 218,079.98 119,289,751.00 Neurology, nonsurgical 3,933 761 313,646.35 238,684,869.00 Neurosurgery 5,775 1,495 309,501.58 462,704,856.00 Obstetric and gynecologic surgery 33,852 10,984 275,171.15 3,022,479,908.00 Ophthalmology 6,266 1,716 176,188.71 302,339,829.00 Ophthalmology, nonsurgical 820 181 204,027.41 36,928,962.00 Orthopedic surgery 23,016 6,288 162,144.55 1,019,564,932.00 Other nonsurgical specialties 1,628 375 151,078.75 56,654,533.00 Otorhinolaryngology 3,660 1,081 194,262.01 209,997,232.00 Otorhinolaryngology, nonsurgical 377 93 276,503.29 25,714,806.00 Pain management 84 10 157,000.00 1,570,000.00 Pathology 1,686 445 239,705.83 106,669,095.00 Pediatrics 7,264 1,872 262,614.61 491,614,555.00 Physical and rehabilitative medicine 666 102 330,438.98 33,704,776.00 Plastic surgery 9,146 2,262 113,755.31 257,314,514.00 Psychiatry 2,415 449 162,185.10 72,821,109.00 Radiation therapy 2,537 602 265,201.59 159,651,355.00 Radiology 13,705 3,716 191,102.22 710,135,860.00 Urologic surgery 5,910 1,622 173,928.39 282,111,843.00 internists reported having reviewed claims or served as expert witnesses, with higher rates among subspecialists, particularly those in academic practice. 17 Medical experts generally cite their own professional experience in defining what care is standard, although they may refer to published literature, surveys of fellow practitioners, or practice guidelines. 18 Experts also may testify to why an injury occurred (causation) and to its extent (damages). Legally compelling opinions must be stated to a reasonable degree of medical probability, that is, a likelihood 50%. In certain cases where negligence is at issue, res ipsa loquitur (Latin for the thing speaks for itself ) may be alleged. To meet this allegation, the plaintiff must prove that an injury could not occur in the absence of negligence, could not have been caused by the plaintiff, and was under the defendant s control (eg, a retained surgical instrument). If the allegation is accepted as prima facie evidence of negligence, the plaintiff is not required to prove a deviation from the standard of care but instead the defendant must prove that negligence did not occur. 3,4 Types of Malpractice Claims The most frequent types of closed claims against internists and internal medicine subspecialists in the PIAA database are the following: (1) errors in diagnosis (24%), (2) improper performance of procedures (14%), (3) failure to supervise or monitor care (12%), (4) medication errors (12%), and (5) failure to recognize the complications of treatment (6%). Approximately 60% of the claims related to hospital practice; 33% occurred in a physician s office. Some 44% of the patients for whom claims were brought died. The same types of closed claims, especially those involving the performance of procedures, are recorded against cardiovascular and thoracic surgeons and cardiologists, and a majority of the claims relate to hospital-based care. 13 Several common allegations stand out in my personal experience of claims brought against internal medicine subspecialists in my field (pulmonary and critical care medicine). In the outpatient setting, these allegations include failure to diagnose lung cancer, in particular failure to follow-up 1046 Commentary

on suspicious plain films or CT scans, often because of inadequate personal or institutional tracking systems. Failure to diagnose bacterial infections, including pneumonia, and to administer antibiotics before the onset of severe sepsis also are commonly alleged. Among claims involving inpatients, the allegations include failure to use pulse oximetry and other monitoring methods in patients cared for outside the ICU who subsequently decompensate; failure to move such patients to a higher level of care, either a step-down unit or an ICU, before decompensation; failure to skillfully perform procedures such as central venous pressure catheterization and to recognize complications resulting from them; and failure to prevent cardiorespiratory arrest, usually by providing prompt endotracheal intubation, in patients who consequently die or suffer ischemic-hypoxic encephalopathy. How Claims Are Resolved Injuries such as hypoxic-ischemic encephalopathy are obvious to and consequential for patients and their families. They also are financially attractive to plaintiff attorneys because they may entail both extensive economic (eg, medical expenses and loss of income) and noneconomic (eg, pain and suffering) damages. Furthermore, one study 19 suggests that the severity of damages, not the presence or absence of errors or negligence, predicts the outcome of litigation. Plaintiff attorneys usually work on a contingency fee basis (approximately 35% of awards), bear the costs of litigating a case, and receive nothing if defendants prevail. They therefore have a strong incentive to take only cases that they can win and that yield generous awards. 2 4 Defense attorneys, however, are reimbursed by liability insurers (or by uninsured defendants) for their time, win or lose, and do not depend on the outcome of individual cases. Defense attorneys usually recommend settling claims if the defendant would appear liable to a jury, especially if the injury is severe, and not settling if the plaintiff s case is poor. 3 Although paid by insurers, they usually represent individual physicians and cannot easily force them to settle if their insurance policies contain a consent to settle clause. 1 Nevertheless, some clauses specify that physicians cannot withhold consent unreasonably. Consent clauses frequently are not available to physicians in large organizations, including academic medical centers, which are self-insured. Commercial liability insurance first became available in the late nineteenth century, when malpractice claims became more prevalent across the United States. 20,21 Insurers losses and declining investment income led them to raise premiums and leave some markets during the latter half of the twentieth century. 22 Physician mutuals were developed in response to this malpractice crisis, as was institutional self-insurance. At the same time, state tort reforms, including the California Medical Injury Compensation Reform Act of 1975, were initiated. Yet claims increased in the early twenty-first century despite these measures, leading to premium increases and a new malpractice crisis in states like Florida that prompted them to institute tort reform. 1,23 On average, 50,000 to 60,000 claims are filed annually in the United States. Of these, only 30% close with payment to plaintiffs. Some 70% of claims are resolved before trial, and plaintiffs win only 30% of cases that go to trial. Claims cost $50,000 to $100,000 to pursue through trial. The average payment for claims either settled or won at trial was $260,000 to $310,000 in 2003. During that year, the estimated total costs for compensation were $5.8 billion, 0.3% of the $1.7 trillion spent in the United States for health care. Administrative costs more than doubled total costs, but the total was still 1% of the $1.7 trillion. 3 Does the US Malpractice System Meet Social Goals? Three social goals have been proposed for the US medical malpractice system. They include the following: (1) compensating patients injured through negligence ( making the plaintiff whole again, in legal parlance), (2) exacting corrective justice ( making the responsible party bear the costs of reparation ), and (3) deterring unsafe practices by creating an economic incentive to take greater precautions ( making defendants learn that it is cheaper to avoid mistakes than to make them ). 2,3 Studies 24 29 performed in the 1970s, 1980s, and 1990s in California, New York, and Colorado and Utah, respectively, provide information on the epidemiology of negligent injuries and whether patients are compensated for them. All three investigations were based on medical record reviews of 20,000 acutely ill nonpsychiatric patients conducted by nurses and physicians. The studies demonstrated that approximately 4% of patients whose records were reviewed had experienced injuries, 10% of which were associated with death but did not necessarily cause it. Some 25% of these injuries were attributed to negligence. Yet, only 5% of patients with negligent injuries actually filed claims. 30 The characteristics of compensation were revealed in a more recent study 31 of 1,400 closed claims from five insurers in all four regions of the United States. This investigation determined that 3% of claims occurred without identifiable injuries and that 37% did not involve errors, negligent or otherwise. www.chestjournal.org CHEST / 134 / 5/ NOVEMBER, 2008 1047

Nevertheless, 72% of claims involving patients without injuries or errors were not compensated, compared to 73% of claims involving patients with injuries due to error that were compensated. In this study, therefore, most patients with injuries due to negligence who actually filed claims were compensated. Yet, 54% of all the compensation went to administrative expenses, primarily legal fees and insurance overhead. Plaintiff attorneys generally believe that the malpractice system exacts corrective justice in penalizing physicians who are prone to error. Although this belief makes common sense, it has not been scientifically supported. In fact, the finding in the aforementioned study 31 that some claims not associated with injuries or error nevertheless are compensated indicates that some physicians are blamed for negligence erroneously. Furthermore, that few patients injured through negligence actually file claims suggests that some, if not many physicians who commit errors are not identified. Whether medical malpractice deters unsafe practices also is unproven. After performing an analysis 32 of closed claims against its members, the American Society of Anesthesiology determined that most compensated injuries could have been prevented with better monitoring. It therefore created standards for such measures as continuous pulse oximetry during surgery that helped reduce both patient injuries and malpractice claims. 33 At the same time, however, the VA introduced electronic medical records and other quality improvement initiatives despite facing a relatively small number of claims from its patients. 34 Even if medical malpractice deters unsafe practices, it may do so at the price of defensive medicine. In response to a mail survey, 93% of high-risk specialists said they had adopted assurance behaviors (eg, ordering more tests or referring patients to other specialists) or avoidance behaviors (eg, forgoing invasive procedures and caring for unstable patients) because of liability concerns. 35 Some of these behaviors may actually benefit patients, but many are harmful. Defensive medicine has been estimated to cost as much as $15 billion in 1991 dollars each year, potentially pushing the overall costs of the malpractice system as high as 1.5% of total health-care spending. 3 On balance, it would appear that the social goals of medical malpractice are not fully realized. Some patients injured through negligence are compensated, but most receive no compensation ( the lawsuit lottery ). Claims are brought against some negligent physicians but also some who are not negligent, and being negligent hardly guarantees a claim. Finally, the deterrent effect of medical malpractice is unproven, and malpractice may prompt defensive medicine and increase health-care costs. Medical Malpractice and Patient Safety Extrapolating from the New York and Utah and Colorado epidemiologic studies, the Institute of Medicine 36 estimated in its from 1999 to 2000 publication, To Err Is Human, that 44,000 to 98,000 hospitalized Americans die each year from medical errors. These estimates surpass those of the number of patients who die from motor vehicle accidents, breast cancer, and AIDS. The total annual national costs of medical errors resulting in injury are $17 to $29 billion, half of which are health-care costs. Although the accuracy of error estimates in To Err Is Human have been debated, 37,38 the publication unquestionably brought attention to the overall need to improve safety in the United States. Strategies for such improvement outlined in To Err Is Human include the following: (1) not blaming individuals, including physicians, for committing errors; (2) eliminating shortcomings in health-care systems that allow errors to occur; (3) increasing error reporting and analysis so that systems can be improved; and (4) disclosing errors to patients with the expectation that safety will increase and malpractice claim volume and costs will decrease. The notion that honesty may be the best risk management policy is supported by experience within the VA, 39 which maintains a prompt disclosure policy and a non tort-based settlement process. Although this policy and process may reduce claims against the VA, claims also may be limited by the loyalty of VA patients and by restrictions against plaintiffs under federal tort law. Furthermore, in an analysis 40 using estimates of injury prevalence from the New York and Utah and Colorado studies, experts predicted that malpractice claim volume and costs would most likely increase, not decrease, if errors were disclosed uniformly. Physicians have an ethical obligation to disclose errors to patients in the ICU and other medical environments regardless of the economic consequences. 41,42 Furthermore, disclosure should enhance safety by helping patients avoid reexposure to drugs and other interventions that may have harmed them. 43 That said, physicians understandably complain that they are being asked to be open about errors with little assurance of legal protection at a time when malpractice claims are increasing and liability insurance is becoming more expensive. The apparent clash between tort law and the patient safety movement has prompted pleas for making disclosure inadmissible in court and for malpractice system reform. 2,3 1048 Commentary

How the Medical Malpractice System Might Be Improved Some physicians, attorneys, and political leaders believe that the US malpractice system can best be improved through tort reform. Tort reform usually stands for discouraging plaintiffs and their attorneys from filing claims. It might involve the following: (1) limiting plaintiff access to courts (eg, by shortening statutes of limitation during which claims can be made or establishing screening panels to determine which claims are meritorious); (2) modifying liability rules (eg, eliminating res ipsa loquitur); or (3) reforming the damage system (eg, capping noneconomic damages and limiting plaintiff attorneys fees, as is the case under the California Medical Injury Compensation Reform Act). 2 Others prefer system reform to tort reform because it does not necessarily limit claims or compensation. Proposed approaches to system reform include the following: (1) alternatives to negligence standards (eg, use of practice guidelines to establish standards of care); (2) relocation of legal responsibility (eg, shifting liability from individual practitioners to the larger organizations of which they may be a part, a concept called enterprise liability ; and (3) alternative mechanisms for resolving disputes (eg, compensating claims through nonnegligence oriented health courts or a no-fault system). 2 Using practice guidelines rather than individual expert opinions to establish standards of care is attractive because such guidelines, especially if developed by the American College of Chest Physicians or other professional organizations, generally reflect a broader consensus. Yet guidelines may be problematic if compliance with them promises perfect results. For example, if the incidence of central line infections can be reduced to zero by following certain procedures in the ICU, as has been demonstrated, 44 res ipsa loquitur might be alleged against physicians who said they followed those procedures but whose patients had infections nevertheless. Enterprise liability will likely become more commonplace as physicians associate with groups such as academic medical centers, large health maintenance organizations, and the VA. 45 Because they are selfinsured, such groups have a strong incentive to improve patient safety; they also can require that practitioners adopt safety-enhancing strategies in exchange for liability coverage. In the VA and some other organizations, physician employees cannot be personally named in malpractice claims. Yet they must be reported to state medical boards and the NPDB, so individual accountability remains. The concept of health courts has been advanced by an organization called the Common Good. Health courts would be administrative bodies overseen by specially trained, full-time judges and aided by neutral experts, in which malpractice disputes would be decided by a standard of care that is broader than the negligence standard. Plaintiffs could receive both economic and noneconomic damages, the latter based on a schedule of benefits, for injuries deemed avoidable. Advocates for health courts claim that they would be fairer and would compensate more injured patients, possibly at less cost than the present tort system. 46 No-fault systems for compensating injured patients are used in Denmark, Sweden, Finland, and New Zealand. Comparable to no-fault workers compensation systems, they are funded by general taxation, premiums on health professionals, or both. The systems cover both economic and noneconomic damages, with caps of the latter, and provide compensation for a limited number of injuries. No-fault proponents point out that the administrative cost of our workers compensation system is half that of our malpractice system. They believe that under nofault, more injured patients could be compensated at less cost. 47 For all the merits of no-fault compensation, the United States seems unlikely to radically alter its present malpractice system for at least these reasons: (1) many interests (including the insurance industry and the legal profession) are invested in the system, (2) it is perceived, rightly or wrongly, as being fair to plaintiffs and defendants, and (3) it emphasizes individual accountability. At the same time, the system is inaccurate in distributing compensation and exacting justice, uncertain in deterring unsafe practices, and inefficient in that it has high administrative costs. Whatever its relative strengths and weaknesses, the US malpractice system is a fact of life (and a cost of doing business) for physicians who practice chest medicine. Many chest physicians will have claims brought against them over their professional careers, whether or not they have been negligent, and some of these claims will be successful. One response to this reality is to practice defensive medicine. Yet ordering unwarranted tests and avoiding risky but potentially beneficial procedures may worsen patient outcomes and not avert malpractice claims. Chest physicians would do better to improve communications with their patients and to reduce the incidence of medical errors. References 1 Nepps ME. The basics of medical malpractice: a primer on navigating the system. Chest 2008; 134:1051 1055 2 Studdert DM, Mello MM, Brennan TA. Medical malpractice. N Engl J Med 2004; 350:283 292 www.chestjournal.org CHEST / 134 / 5/ NOVEMBER, 2008 1049

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N Engl J Med 2007; 356:2713 2719 43 Luce JM. Acknowledging our mistakes. Crit Care Med 2006; 34:1575 1576 44 Pronovost P, Needham D, Berenholtz S, et al. An intervention to decrease catheter-related bloodstream infection in the ICU. N Engl J Med 2006; 355:2725 2732 45 Bovbjerg RR, Bersenson R. Enterprise liability in the twentyfirst century. In: Sage WM, Kersh R, eds. Medical malpractice and the U.S. health care system. Cambridge, UK: Cambridge University Press, 2006 46 Mello MM, Studdert DM, Kachalia AB, et al. Health courts and accountability for patient safety. Milbank Q 2006; 84: 459 492 47 Johnson WG, Brennan TA, Newhouse JP, et al. The economic consequences of medical injuries: implications for a no-fault insurance plan. JAMA 1992; 267:2487 2492 1050 Commentary