Bad apples and malpractice

The Incidental Economist at Academy Health is summarizing some research on medical malpractice by looking at which doctors get sued and pay out awards for malpractice:

they looked at the concentrations of claims among physicians.

What they found is this: Most docs who were sued (84%) were only sued once. But they account for only 68% of paid claims. About a third of claims are accounted for by just 1% of doctors.

Docs who get sued more are more likely to get sued again.

Malpractice is fairly rare and most of the time it is “incidental” malpractice; something went wrong on an isolated basis.

I find the most interesting part is the confirmation that malpractice is almost a Pareto distribution where 1% of the universe is causing a massively disproportionate share of the problems.  Focusing on these docs and these malpractice claims would lead to far more effective practices of medicine, less suffering and a less busy court system without limiting access to the courts and awards for truly egregiousness cases of malpractices.  It would be in most people’s best interests, including the malpractice insurers, to find way to either correct correctable systemic errors of practice from the high award providers or get those providers out of clinical settings where they are harming people.  For some of the highest risk practitioners, it might be in the everyone else’s best interest to buy the medical license back.

Or we can rely on self-interested guilds to police their own members with the interest of the public as their number one priority while assuming that they won’t use their public trust and political power to shift blame and costs to someone else…. Unpossible!

33 replies
  1. 1
    Amir Khalid says:

    How does a doctor get sued again and again for malpractice without their incompetence incurring the wrath of the licensing authority in other ways? At some point they should surely be asked to explain how bad things keep happening to their patients.

  2. 2
    Baud says:

    “If I kill you, you don’t pay.”–Dr. Nick.

  3. 3
    MomSense says:

    I’m not denying there are bad apples, but it is pretty common that a patient can have a bad result even if the doctor hasn’t actually performed outside the “standard of care”. The other factor I’m thinking of is the statute of limitations and how that may cause a patient to file a claim only to find out with expert opinion that they can’t prove the doctor performed outside the standard of care. At that point the case may be dismissed. What percentage of claims actually lead to findings of malpractice? I have friends who are therapists who have had claims against them that their insurance companies have had to defend. These were cases involving children with highly conflicted parents.

  4. 4
    OzarkHillbilly says:

    It would be in most people’s best interests, including the malpractice insurers, to find way to either correct correctable systemic errors of practice from the high award providers or get those providers out of clinical settings where they are harming people.

    Why don’t the insurers just refuse to insure some one with such a record? Or charge so much nobody could possibly afford it?

  5. 5
    Wag says:

    Having been involved in peer review and credentialing for 15 years for a local no time for profit health insurance company, I can confirm these numbers. We review every malpractice case filed against physicians on our panel. The majority of affected providers have a one time occurance that indicates no quality concern. The 1% exceptions have repeated lawsuits and we scrutinize them very carefully and occasionally remove than from our panel.

    It is a difficult process to remove someone from the panel, and it triggers a stream of consequences for the physician, but it is important work to do.

  6. 6
    dr. bloor says:

    Or we can rely on self-interested guilds to police their own members with the interest of the public as their number one priority while assuming that they won’t use their public trust and political power to shift blame and costs to someone else…. Unpossible!

    It’s an infuriating problem, on par with the blue wall of silence when a cop goes rogue. Can’t get them out of practice with dynamite no matter how many times patients (and other docs) drag their asses in front of state licensing boards.

  7. 7
    Botsplainer, Cryptofascist Tool of the Oppressor Class says:


    There’s an attitude among a not-small percentage of doctors that refuses to recognize that the payment of malpractice premiums is simply one of their costs of doing business. It leads to them advocating policy positions that would pass the costs of their negligence off onto those they injure, all so they can enjoy truly outsized financial rewards for not a lot of work. A special tax, if you will.

    American conservatives of the wealthy and upper middle classes are truly the laziest, most self-entitled people on this planet. Privatize the profit, socialize the fuckups.

  8. 8
    p.a. says:

    Don’t a significant % of multiple offenders bounce between hospitals/groups/areas to keep ahead of the paper trail?
    What % of multi’s are the result of drug/alcohol issues?

  9. 9
    OzarkHillbilly says:

    @Botsplainer, Cryptofascist Tool of the Oppressor Class: Yeah, and the insurers too. In fact, I always figured the push to limit malpractice awards came mostly from the insurance industry. I do wonder how many Docs actually buy the fiction that that ‘fix’ will lower their insurance premiums?

  10. 10

    @Amir Khalid: State-level politics, much?

  11. 11
    dr. luba says:

    I was under the impression that certain specialties–neurosurgery, for one–tend to get sued more often simply because of the type of work they do (high risk surgeries with no guarantees of good outcomes). And that specialists tend to get sued more often because 1) they tend to get the most complicated cases and 2) their patients do not usually have a close relationship with them.

    I can’t access the report this post is referring to (work computer). Is any of this addressed?

  12. 12
    gvg says:

    Years ago I learned from the gay partner of a local surgeon that an Orlando News story along those lines was basically wrong because the doctors and surgeons that it characterized as the problem were specialists whose area was high risk to start with. The specific doctor they made the center example in the story was someone who did a weight loss ring around the stomach. He was only called in when people were in likely danger of dying due to being grossly obese and already had serious health issues. They were all well over 300 pounds, sometimes over 500. They were certain to die soon in the judgement of their primary care physician and this surgery only had some chance of success but doing nothing would be fatal. I forget what the details of the other cases the TV news gave were but there were problems with the most highlighted cases.
    On the other hand, my sister is a doctor now and there are a few fools, alcoholics and other problems out there. Actually though foolish cost cutting management (not enough staff in some areas) seems to be a danger also and I am not quite sure how you prove that or sue or how that impacts malpractice insurance.
    All this is to say I am not sure how you figure out who really is a problem if you aren’t a doctor and if you are a doctor, the public may perceive you as protecting your own which may or may not be a correct view.

  13. 13
    I'mNotSureWhoIWantToBeYet says:

    Aren’t the wonders of Social Media supposed to be a breakthrough that helps with this, also too? AngiesList and RateMyDoctor and Yelp and DontGoToThisQuack and DrNickAlmostKilledMe and … That’s been the promise, anyway – I don’t think we’re there yet. I don’t know how those sites can vet the opinions posted without slander / libel issues for the posters.

    The medical boards need to take the lead on this, but it seems like there needs to be more participation from laypersons so that it doesn’t become a “we protect our own” formality. (Sorta like “citizen review boards” that look over infamous police cases.)


  14. 14
    Face says:

    Docs who get sued more are more likely to get sued again.

    Is this a Yoda-ism? Because, yes, doctors who are sued more than once are likely to be sued more than once. Yup, the math demands it.

  15. 15
    Ahasuerus says:

    I just want to amplify the point that Dr. Luba, et. al. above have made; some sub-specialities have high failure rates not because of physician incompetence, but simply because the procedures are literally last-ditch efforts, often unsuccessful, to stave off death. Another area that comes to mind is high-risk obstetrics, as really preemie preemies don’t have a very good outcome baseline to begin with. It’s just a sad fact that too many people conflate bad outcomes with bad practice, when the two are not always the case.

  16. 16

    @Face: Time period 1 split the doc population into two groups — those who are sued and pay out and everyone else.

    If malpractice awards/suits are random, then there should be no difference in relative risk of a doc getting sued and paying out in Time Period 2 no matter what group they were in Time Period 1

    Instead the study is finding that there is a much higher risk of a doc in Time Period 2 being sued and paying out if they were sued and paid out in Time Period 1

  17. 17
    japa21 says:


    It’s just a sad fact that too many people conflate bad outcomes with bad practice, when the two are not always the case.

    Can’t be stated enough. Bad outcomes happen. The real problem, as MomSense stated above is that, even if a doctor fully works within the standard of care, bad things can still result.

    And, to a great degree, understandably, the patient or family of the patient really doesn’t care/. All they know is that somebody should pay the price for the bad outcome. And there are lawyers out there that have made it a specialty to get them results.

    Another issue is when the treatment falls into the “experimental” category. There frequently is no established standard of care in those cases, but it may be the only route open to a patient and despite all the forms they fill out saying they are aware of the risks, etc., when the result isn’t what was hoped for, the first call is to a lawyer.

  18. 18
    dr. luba says:

    @Ahasuerus: Also, too, one of the problems in this country is there isn’t a good social safety net for children with cerebral palsy and other so-called “birth injuries,” many of which are due to genetic or other antenatal injuries that are not predictable nor amenable to prenatal treatment or prevention.

    When a child is born that will need long term expensive care, often the obstetrician (or hospital) gets sued because that is the only option parents have to try and get funding to provide for the child’s care.

  19. 19
    Hillary Rettig says:

    it would be interesting to see which specialties get sued more. my layperson’s understand is that ob/gyn gets sued a lot. i’m guessing also plastic surgery? any others?

  20. 20
    OzarkHillbilly says:

    @japa21: There are also legions of cases that never even get filed because families are just wore out. My mother’s death was contributed to by some institutional malpractice. The 5 surviving kids didn’t even think about suing. We were all strung out by 3+ months of her bouncing back and forth between ICU and rehab facilities, plus the certain knowledge that their neglect only hastened the inevitable. My RN SIL who worked in such a facility filled out the complaint and filed it with the proper agency and we left it at that. We still had my Alzheimered father to take care of.

  21. 21
    Hillary Rettig says:

    @OzarkHillbilly: So sorry. I think you’re right that there are legions of cases like your own.

  22. 22
    Capri says:

    Even though it’s darn near impossible to get any of them to admit it in public, behind the scenes doctors know the bad eggs in their profession. One way to get at this is via referral data. Perhaps referral isn’t the correct word, but in a hospital system,doctors refer all their hospitalized patients to other doctors if they go on vacation,are out sick, or just off duty. So local doctors refer to each other all the time as they cover for each other. When my brother was the epidemiologist for the UTenn hospital system and charged with weeding out problem doctors, the one thing that really stood out was that there were one or two doctors who were never referred to. Which meant that none of the other doctors were willing to leave patients in their care.

  23. 23
    Hillary Rettig says:

    Richard – can I ask a question about that analysis of Bernie’s single payer plan that you mentioned that indicated a $1 trillion shortfall. Did it take into account an expected decline in these kinds of occurrences (and consequent cost savings) :

    *current overuse of emergency rooms for non-emergencies of many types
    *sick time and underproductivity due to current lack of preventative care
    *higher cost of treatment versus prevention


  24. 24

    Let’s not forget that 95%+ percent of claims never make it to trial; the problem of bad medicine is far greater than just 1% of doctors in practice.

    Good friend of mine’s a malpractice lawyer. There’s quite a few docs, some of them considered quite good, in my local area who’ve flat-out killed patients and have never spent a day in court. I call her for references to good doctors. I don’t ask other docs. They frequently have some sort of fiduciary relationship which each other, and I’ve never had one step up and disclose that.

  25. 25
    gvg says:

    I don’t think it would help if more cases went to trial. the general public wouldn’t understand the technical issues correctly and most of us even know it. A jury of peers would understand but might feel biased. I don’t know how to structure it so juries could actually have relevant experience but that has far broader implications than just medicine.
    I have the impression that a major reason many financial crimes don’t get prosecuted sufficiently is most juries can be confused.
    Could we improve our system so juries of peers actually meant training so not bamboozled?

  26. 26
    NCSteve says:

    So, basically, if doctors did even half the sorry-ass job lawyers do of policing their profession, the malpractice premiums they constantly bitch about would be at least a third lower and they might even feel less need to practice “defensive medicine” (at least to the extent that that’s not just another way of saying “testing what their guts tell them with science, being annoyed at the necessity for doing so when they were proven right–because, hey, they’re always right–and confirmation-biasing away the times they were proven wrong.”)

  27. 27
    Hillary Rettig says:

    @Capri: but it’s also very easy to game the system; you’re always hearing about corrupt referral networks, Medicaid fraud, overtesting, excessive surgeries, etc.

  28. 28
    WarMunchkin says:

    @Hillary Rettig:
    Both of you might be interested in this thing from Eschaton earlier today.

  29. 29
    Tyro says:

    Some specialities are more malpractice prone than others. Basically,surgeons, especially neurosurgeons, will typically have a few malpractice suits in their careers.

    That said, there are some surgeons who will look at a case and say, “it is too risky. I won’t do it, because there will too many possible things that can go wrong out of my control.” And there are some surgeons who will say, “this case looks cool! Let’s do it!” And the latter group gets sued a lot more.

  30. 30
    Bill Murray says:

    @Richard Mayhew: were the doctor’s split by specialty too?

  31. 31
    Villago Delenda Est says:

    Or we can rely on self-interested guilds to police their own members with the interest of the public as their number one priority while assuming that they won’t use their public trust and political power to shift blame and costs to someone else….

    I remember reading something similar to this that was written over two centuries ago….

    People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty or justice. But though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less to render them necessary.

  32. 32
    PST says:

    I have spent 30 years or so working for hospitals and insurers on medical malpractice issues, and during that time there have been remarkable changes in the resources devoted to quality assurance and patient safety. And I don’t just mean financial resources, but also high-level attention and institutional muscle. A cynic might attribute this to the high cost of mistakes, and I’m sure that plays a big part, but underlying attitudes have changed as well. Risk managers used to be promoted out of nursing ranks and devote most of their attention to falls, medication errors, and other nursing mistakes. Major medical errors usually involve doctors, but at most institutions they were independent practitioners with their own malpractice insurance, and while they might listen to peer committees, they were resistant to institutional control. Today, healthcare systems have a broad range of patient safety metrics that are watched by senior management and staffs to investigate low scores and take corrective action. To a large degree, doctors today are employees or the equivalent. Although many of the senior administrative posts are likely to be held by doctors, they are highly sensitive to cost and safety data. The biggest sign of commitment to me is that in last couple of years I have begun to see adoption of a daily “patient safety huddle,” with some of the most powerful figures – often the COO, chief of the medical staff, director of nursing, head of IT, etc. – joining the director of quality and the risk manager early each morning to go over reported incidents from the day before and discuss how to remediate and prevent recurrences. The Joint Commission, which accredits hospitals, requires them to convene a task force to find the root cause of every incident that causes injury or results in a near miss. Many hospitals go far beyond this, adopting innovative measures like explicitly empowering every person in an operating room to call a “time out” if something seems amiss, simulation labs, and exercises to improve hand-offs between departments and shifts. Tools like check lists and six sigma training have been adopted from industry and aerospace sources. Efforts are made to weed out doctors who just plain have bad attitudes, whether toward colleagues, patients, or subordinates, because people like that get in the way of improving the system. And yet still, malpractice claims are made, some of them meritorious and tragic.

    As others have mentioned, there is a huge difference in the incidence of claims among specialties, with obstetrics and neurosurgery faring worst. If a child is born with cerebral palsy or a back patient awakes from surgery paralyzed, there will be a lawsuit, even though both these outcomes can occur without medical error. These cases are often compromised even when the defense has excellent experts who believe that the standard of care was met, simply because opinions differ, adverse experts can be found, and the risks of a verdict are so high. Members of some other specialties have little opportunity to make errors so severe as to make litigation worthwhile. So I am not so sure that the 1 percent who draw most of the claims are always bad apples. Sometimes they are superstars.

  33. 33
    I'mNotSureWhoIWantToBeYet says:

    @PST: Thanks very much for your post. Very interesting information.


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