Philadelphia Reflections

Or, A Few Bad Apples?

Surgeons

Plaintiff lawyers and physicians do occasionally meet socially. A common way to skirt the awkwardness is to nod agreement that the malpractice problem is caused by a few bad apples in both professions. As competitors, physicians can be censorious; doctors who have never been sued find it easy to accept that those who do get sued must be substandard. This contention has been examined many times, and it is pretty firmly established that doctors who are sued are at least as competent as those who are not. While it's undeniable that sociopaths can creep into any profession, this truism has led to few reform proposals of any great promise. It's not true that every doctor gets sued at least once, but in some specialties like obstetrics a majority are sued, and those specialties soon develop shortages. Certain cities and states have a greatly increased incidence of a suit. Put that together, and you can safely predict impending shortages of particular specialties within certain zip codes. It would be a simple matter to examine the quality of particular medical specialists in those zip codes, and then for fairness examine the local legal climates. The outcome of such a study is rather easily predictable.

To assess the matter in a less confrontational way, look at insurance premiums for malpractice coverage. Doctors with a single case in their history can usually obtain insurance at standard rates, but premiums go up considerably after a history of two or more claims. Shopping the market through a broker will usually not discover an insurance company which will yield on this point. All states permit higher premiums for applicants with a history of multiple claims. Since insurance companies keep careful statistics and analyze them constantly, it seems likely they do have proof that one predictor of future claims is a history of having prior claims. There are other predictors, not necessarily marks of criticism: practicing in certain states or cities is risky. Working in certain surgical specialties is a risk. The bigger a doctor's practice, the more opportunity for claims to arise. Mix all this together, correct one factor against another with computers, and you seem to find a small proportion of cases concentrated in an unlucky few physicians. No further tweaking of the data will specify any characteristics of the suit-prone group. Since that leaves you with the conclusion that the only way to identify the suit-prone is to wait for three or four suits, the matter must be approached with resignation. Fortunately, the contribution of these people to the problem, while undeniable, is small.

In desperation, some even suggest an approach once adopted by Napoleon. He said he didn't like unlucky generals and fired them summarily. The managers and coaches of sports teams are similarly treated, and somehow we accept the injustice of it. But regardless of the merits of such pragmatism in win-lose team encounters, it misses a central point in negligence suits.

The patient, counseled by his lawyer, makes the decision to sue. Studies of many hospitalizations reveal the cases brought to the law are not materially different from many other cases that do not result in a lawsuit. The cases brought to court seem chosen by anger, mendacity, or just bad luck. Their grievance may or may not be justified, but it is not a degree of justification which distinguishes them from 90% of similar cases. Many studies of suit-prone physicians have been made, but it's uncomfortable to conduct studies of suit-prone patients. Who can doubt that identifiable suit-prone patients would discover they had difficulty finding a doctor? In summary of this point, the published levels of malpractice premiums are reasonably good measures of multiple suits. Since some regions have vastly higher premiums than others, it remains to be demonstrated whether those areas somehow have a vastly increased number of suit-provocative doctors. Or whether the variability is more fairly described as a local legal one.

Originally published: Monday, June 19, 2006; most-recently modified: Wednesday, May 29, 2019