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Are There Differences Between Settled and Judged Successful Malpractice Claims?

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Fear of malpractice is frequently mentioned as a cause of excessive health care spending. The theory is that to avoid being sued, physicians may practice "defensive medicine" — ordering tests, procedures and referrals that may not be medically necessary.

Dr. Tara Bishop

"The vast majority of successful malpractice claims are settled out of court. Only a very small percentage of claims are judged in court," said Dr. Tara Bishop, the Nanette Laitman Clinical Scholar in Public Health/Clinical Evaluation, assistant professor of public health and medicine at Weill Cornell Medical College and assistant attending physician at NewYork-Presbyterian Hospital. "But cases judged in court receive a lot more attention than those settled out of court. This can skew the perception of malpractice risk."

Dr. Bishop and Jessica Rubin, a Weill Cornell medical student and public health expert, undertook a study to compare characteristics of paid malpractice claims that are settled out of court with claims that are judged in court. They used data from the National Practitioner Data Bank, a repository of all malpractice payments paid on behalf of practitioners in the United States. Results of their study are published in BMJ Open.

"We wanted to see if there are differences in patient, physician and claim characteristics between claims that are judged in court and those that are settled out of court," said Rubin, the lead author of the study. "We found differences in a number of areas. For example, claims judged in court were more likely to be for obstetric and surgical cases as opposed to other types of medical errors."

"We also found that payment amounts for paid claims judged in court are significantly higher than for paid claims settled out of court," added Dr. Bishop, the study's senior author. "They also take longer to be resolved."

The study results have a number of practice and policy implications. For example, the higher number of obstetric and surgical claims judged in court compared to diagnosis and treatment claims may lead physicians and policy makers to overestimate the malpractice risk of obstetric and surgical procedures and can lead to more defensive practices in these fields. At the same time, since claims for diagnostic and treatment errors are more often settled out of court, the malpractice risk for these types of errors may be underestimated.

"If physicians and health care organizations perceived a higher malpractice risk for diagnostic and treatment errors, they might implement protocols and systems to reduce these types of errors, thereby improving patient safety," Rubin said.

"Cases judged in court likely affect how policymakers approach malpractice reform," Dr. Bishop said. "Most malpractice reform has centered around caps on damages, but this may have little effect on overall malpractice spending or defensive medicine since these reforms focus on damages from court cases. For malpractice reform to be effective, policy makers need to take into account all paid cases, not only the high-profile court-adjudicated cases."

Further research should continue to monitor the prevalence and cost of settled and judged claims, the authors say. A better understanding would help us to improve our malpractice system, reduce malpractice costs, and minimize avoidable errors and injuries.

Dr. Bishop's work on this study is supported by a National Institute on Aging Career Development Award (K23AG043499) and in part by funds provided to her as a Nanette Laitman Clinical Scholar in Public Health at Weill Cornell Medical College.

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