More than 42% of physicians have been sued for medical malpractice at some point in their careers, and more than 20% were sued at least twice, according to a new American Medical Association (AMA) report.

An average of 95 claims were filed for every 100 physicians — almost 1 per physician — the AMA’s Physician Practice Information survey of 5825 physicians, fielded in 2007 and 2008, found.

Despite the pervasive threat of litigation across 42 different specialties surveyed, two thirds of claims are dropped or dismissed, and physicians prevail 90% of the time in cases that go to trial, the study found. Still, the costs to physicians in terms of malpractice premiums and to the entire healthcare system resulting from the practice of defensive medicine are quite high. Average defense costs per claim range from a low of $22,000 among claims that are dropped or dismissed to a high of more than $100,000 for cases that go to trial.

“Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can influence how and where physicians practice, when they retire, and how often they practice wasteful defensive medicine,” AMA Immediate Past-President J. James Rohack, MD, told Medscape Medical News. “This litigious climate hurts patients’ access to physician care at a time when the nation is working to reduce unnecessary healthcare costs.

“Unfortunately, there are no real surprises in this study for us,” said Dr. Rohack, a cardiologist in Temple, Texas. “It reconfirms the need for a solution to our current tort system. If the nation is ever going to control the rise in healthcare costs, we have to eliminate wasteful defensive medicine spending.”

Other highlights in the report include:

•Nearly 61% of physicians aged 55 years and older have been sued.
•There is wide variation in the effect of liability claims between specialties. The number of claims per 100 physicians was more than 5 times greater for general surgeons and obstetricians/gynecologists than it was for pediatricians and psychiatrists.
•Before they reach the age of 40 years, more than 50% of obstetricians/gynecologists have already been sued.
•Ninety percent of general surgeons aged 55 years and older have been sued.
“In any single year, being sued is a rare event. Only 5 percent of physicians had claims filed against them in that time frame. Over the length of a career, however, claims are much more common,” the report found.

Using data compiled by the Physician Insurers Association of America, a group of physician-owned or physician-operated liability carriers, the AMA survey found:

•Sixty-five percent of claims were dropped, dismissed, or withdrawn; 25.7% were settled; 4.5% were decided by alternative dispute mechanism; and 5% were resolved by trial, with the defendant prevailing in 90% of those tried cases.
•Median indemnity payments were $200,000 for settled claims and $375,000 for tried claims.
Pediatricians and psychiatrists had the lowest incidence of claims. Less than 30% of physicians in either specialty were sued. General surgeons and obstetricians/gynecologists had the highest incidence of claims. Nearly 70% of physicians in those specialties were sued, and more than 200 career claims were filed for every 100 physicians.

Twice as many male physicians had been sued (47.5%) compared with female physicians (23.9%). Male physicians had more than twice as many career claims per 100 physicians, at 111 for men compared with 41 for women. There are several reasons for that disparity. Male physicians are concentrated in the specialties with the highest levels of claims, and female physicians are concentrated in those with the lowest levels. Women also are newer entrants into the medical workforce, so the men had a longer time period, or length of exposure, during which to accumulate claims. Male physicians also worked on average 5 more hours per week than women, resulting in greater exposure. Finally, male physicians were more likely to be practice owners than women.

Practice owners were about 14 percentage points more likely to be sued than employees (47.5% vs 33.4%) because owners incur claims from other physicians and employees of their practices.

The report concludes that the malpractice system “gets it wrong” in terms of compensation for medical errors on both sides of the equation. Citing a 2006 study (N Engl J Med. 2006;354:2024-2033), the report said 27% of claims involving errors were uncompensated. On the flip side, the same percentage of compensated claims did not involve a medical error.

The AMA cites its report to lobby for “proven medical liability reforms to lower health care costs and keep physicians caring for patients,” especially caps on awards for pain and suffering. “The findings in this report validate the need for national and state medical liability reform to rein in our out-of-control system where lawsuits are a matter of when, not if, for physicians,” said Dr. Rohack.

The AMA favors caps on awards for noneconomic damages. “We know they work,” Dr. Rohack said. “Before the reforms in Texas in 2003, obstetricians, neurosurgeons, orthopaedists, and other high-risk specialists were leaving the state. Patients had to travel long distances to see these specialists.”

Paul B. Ginsburg, PhD, president of the Center for Studying Health System Change, based in Washington, DC, said the report shows that the threat faced by physicians, particularly in the high-risk specialties, is pervasive.

“We have long known that the medical liability system is a highly ineffective and inefficient mechanism to improve quality,” Dr. Ginsburg said. “As the delivery system advances in the area of quality measurement, the crude and poorly targeted liability system seems to be even more inappropriate. In fact, the malpractice system is really obsolete in terms of improving quality and compensating victims.”

Dr. Ginsburg argues that the AMA should “aim higher” in its reform efforts. Caps on awards are “a Band-Aid, not true reform. It may reduce the volume of claims and payouts through the system but doesn’t improve quality. And the opposition to caps is so dug in that it may be impossible to achieve anyway.

“There are more ambitious proposals, such as granting safe harbors for care delivered in accord with accepted practice guidelines,” he added. “Care delivered consistently with those guidelines should be protected.” Pilot projects such as special health courts where judges experienced in malpractice cases choose their own experts and decide a case without a jury also are promising, he said.

Dr. Rohack said the AMA also favors these reforms but believes that caps on awards are a proven benefit to physicians.

The New York Times article highlights an issue that is a subject of much discussion among oncologists. Advances in mammography and other imaging technology during the last 3 decades have allowed visualization of extremely small lesions, according to the article. It may be particularly challenging for pathologists to distinguish the difference between some benign lesions and early-stage breast cancer.

Flip of a Coin

The diagnosis of DCIS “is a 30-year history of confusion, differences of opinion and under- and overtreatment,” said Shahla Masood, MD, the head of pathology at the University of Florida College of Medicine in Jacksonville, in the New York Times article. “There are studies that show that diagnosing these borderline breast lesions occasionally comes down to the flip of a coin.”

In response to concerns about the accuracy of breast pathology, the College of American Pathologists has announced that it will begin a voluntary certification program for pathologists who read breast samples. Among the requirements is that pathologists must read 250 breast cases a year. In addition, in a response to concerns that approximately 17% of DCIS cases identified by needle biopsy may be misdiagnosed, a new study supported by the federal government will be conducted to examine the variations in breast pathology.

However, as noted in the New York Times article, there are currently no mandated diagnostic standards or requirements for pathologists who evaluate breast tissue samples. This means that diagnostic accuracy can vary among facilities, depending on the individual expertise of the pathologists.

Is DCIS Really a Cancer?

As previously reported by Medscape Medical News, some experts believe that the term “carcinoma” in the phrase “ductal carcinoma in situ” is misleading and troubling and ought to be dropped, or at least that its elimination should be considered. In fact, in some cases experts suggest that DCIS is a possible candidate for management by active surveillance — a treatment strategy of growing importance in prostate cancer in which low-risk patients are monitored but do not receive active treatment unless they progress to a higher risk.

However, others disagree. “Although active surveillance is a step that can mitigate the harms of treatment, we doubt that it will mitigate the effects of uncertainty and anxiety,” H. Gilbert Welch, MD, Steven Woloshin, MD, and Lisa M. Schwartz, MD, from the Department of Veterans Affairs and Dartmouth Medical School, New Hampshire, comment in an editorial (J Natl Cancer Inst. 2008;100:228-229).

“To do this, we must go back a step and question the value of making the diagnosis in the first place,” they write.

The editorialists note that there “is a sea of uncertainty surrounding DCIS. Some lesions will progress to cancer, others will not. Some women with DCIS will develop cancer elsewhere in their breasts, whereas others will not. And we’re not sure what the chances are.”

In her Medscape videoblog, Kathy Miller, MD, notes that there has been a “long understanding that we overtreat patients DCIS,” and that it is a “disease that we rarely had to deal with in the days before mammograms.”

“But with mammograms, about a third of patients diagnosed with breast cancer are diagnosed with DCIS and they are virtually all treated,” said Dr. Miller, an associate professor of medicine at Indiana University School of Medicine, Indianapolis. “It’s almost as frightening, if not as frightening, as for those patients diagnosed with invasive disease.”

Dr. Miller noted that with advancing technology, there will come a time when patients with DCIS can be better defined as to whether or not their disease is likely to progress. Those patients will likely need treatment, whereas others can simply be monitored.

“But we can’t do that now,” she pointed out. “If you have carcinoma in the name, that makes doing nothing scary for patients, scary for doctors, and untenable for everyone.”

Although simply changing the name will not remove the fear, changing the name could start to change the mindset, she added. “[It] could make it easier, could make it possible to study which patients need treatment and which patients don’t. And [it] could go a long way to moving how we think about the disease in a way that could be very helpful.”

[CLOSE WINDOW]Authors and DisclosuresJournalistRoxanne NelsonRoxanne Nelson is a staff journalist for Medscape Oncology.

The new technology was described here at the American Association of Physicists in Medicine 52nd Annual Meeting.

“This could change the field,” explained Franklin Epstein, MD, chief of the Division of Neurosurgery at Audie L. Murphy Memorial Hospital in San Antonio, Texas, in an interview with Medscape Medical News. Dr. Epstein is not affiliated with the study.

Xuangeng Ding, MS, a graduate student at Wake Forest University in North Carolina, presented his research at the meeting. He told Medscape Medical News that “the idea of this study is to use iron-containing MWCNTs to easily locate these nanoparticles in MRI and aim these particles into the tumor…then fire the laser…. [This approach] improves the safety and accuracy of the treatment.”

Mr. Ding and colleagues injected 600 mg Fe MWCNTs and N-Doped MWCNTs (as the control) into the breast tumors of 2 mice. This was followed by near-infrared laser-induced thermal therapy (LITT) at 3 W/cm2 for 30 seconds. MRI scans (7T MR T2 maps) of the mouse tumors with MWCNTs were run at 5 time points during and after LITT.

The mouse studies showed that 600 mg Fe MWCNTs contrast agents were able to change the tumor T2 relaxation from 61 ms to 22 ms and create a void signal in the implanted target area. This allowed for tumor localization for MR-guided LITT. One week post-LITT, MRI showed that the Fe-containing MWCNTs were still in the implanted target region, and the T2 relaxation properties were stable.

Dr. Epstein explained that the “Holy Grail” of neurosurgeons is to find an agent that lights up in an MRI and also lights up in the operating room. “These nanoparticles seem to fit that bill, based upon preliminary studies.”

Mr. Ding elaborated, “Clinical practice is definitely our next step. The only problem will be the toxicity of the nanoparticles. MWCNTs are very small carbon tubes (nanometer scale)…([of which] more than 97% [of their] weight is carbon). Carbon itself is not toxic…. In our experiment, these cleaned MWCNTs don’t show any side effects in our mice at all. Will the iron particle be released from the nanotubes after a very long time (>1 year) have long-term side effects on animals or humans? That is what our biology group is working on. We will have the result soon.”

The study was supported by the National Institute of Health. Neither Mr. Ding nor Dr. Epstein has disclosed relevant financial relationships.

American Association of Physicists in Medicine 52nd Annual Meeting: Abstract WE-E-204B-5. Presented July 21, 2010.

[CLOSE WINDOW]Authors and DisclosuresJournalistLara C. Pullen, PhDPresident, Environmental Health Consulting, Oak Park, Illinois