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Stopping Repeat Offenders:
The Key to Cutting Medical Malpractice Costs
——————————
To Read the Press Release Click Here

The medical community has argued that medical liability litigation constitutes a giant "lottery," in which lawsuits are purely random events bearing no relationship to the care given by a physician. In reality, a small percentage of doctors are responsible for the bulk of malpractice in the United States, and better oversight by state medical boards could drastically reduce the damage they cause.

• Public Citizen’s analysis of the National Practitioner Data Bank, which covers malpractice judgments and settlements since September 1990, found that about five percent of the doctors in the United States are responsible for half the malpractice. Specifically, 4.8 percent of doctors (40,118) have paid two or more malpractice awards to patients. These doctors are responsible for 51 percent of all the reports made to the Data Bank, and have paid out nearly $21 billion in damages, more than 53 percent of the total damages paid.

• 14,293 doctors, representing 1.7 percent of the doctors in the U.S., have made three or more payments, totaling $11 billion. These doctors are responsible for 27.5 percent of all malpractice awards.

Rather than a random, lottery-like pattern, this distribution very much resembles the pattern of drunk driving recidivism. Motor vehicle licensing bureaus have procedures in place to prevent or deter predisposed individuals from driving under the influence, such as mandatory counseling and license suspensions or revocations. Unfortunately, medical licensing boards do not use their authority with nearly as much vigor.

Number of Medical Malpractice Payments and Amounts Paid by Doctors¹

A Vanderbilt University study found that doctors with past records of malpractice claims can be expected to have "appreciably worse claims experience" than other doctors in future years.² Despite the fact that claims history predicts future claims, neither licensing boards nor the insurance market have been effective in reducing malpractice. There are over 6,000 doctors in the U.S. who have paid four or more malpractice claims, amounting to more than $6 billion. These numbers can be expected to grow.

The American Medical Association says that the "crisis" conditions in twelve states have resulted from too many lawsuits. But redacted records from the National Practitioner Data Bank demonstrate that lax discipline by medical boards allows questionable doctors to inflict repeated injuries on patients:

• Physician Number 94358, licensed in New Jersey, settled or lost 33 medical malpractice suits involving improper diagnosis or treatment between 1988 and 1993, inflicting over $400,000 in disability costs to his patients. This doctor has not been disciplined by authorities in New Jersey.

• Physician Number 64625, licensed in Pennsylvania, paid 24 medical malpractice claims involving improper performance of surgery between 1989 and 2001. Damages to this doctor’s patients exceeded $370,000. This doctor has never been disciplined by Pennsylvania authorities.

• Physician Number 125457, while licensed in Nevada, paid 5 malpractice claims involving improper performance of surgery between 1995 and 1997, with damages totalling $2.3 million. Recent news accounts have reported that doctors are fleeing from Las Vegas to other states to avoid high malpractice insurance premiums. Physician 125457 was ahead of the curve in moving his practice to California. There he paid another 8 malpractice claims with damages exceeding $7.5 million. This doctor has never been disciplined by authorities in either Nevada or California.

• Physician Number 37949, licensed in Texas, settled or lost 13 medical malpractice suits involving improper treatment or improper performance of surgery between 1990 and 1997. Two of the suits involved the same allegation—a foreign body left in the patient during surgery. Damages to this doctor’s patients exceeded $2 million. This doctor has never been disciplined by authorities in Texas.

The Right Approach:
Reduce Medical Errors and Improve Oversight of Physicians

For more than a decade, the Public Citizen Health Research Group has been carefully scrutinizing the performance of state medical boards. As the group reported in its Questionable Doctors publication,³ too little discipline is being done. Too many state medical boards, despite their duty to protect the public, still believe their first responsibility is to rehabilitate "impaired physicians" and shield them from the public’s prying eyes. Fewer than one-half of 1 percent of the nation’s doctors face any serious state sanctions each year. 2,708 total serious disciplinary actions a year, the number state medical boards took in 2001, are a pittance given estimates that between 44,000 and 98,000 deaths of hospitalized patients are caused by medical errors annually.

State discipline rates ranged from 10.52 serious actions per 1,000 doctors (Arizona) to 0.73 actions per 1,000 physicians (District of Columbia), a 14.4-fold difference between the best and worst states. If all the boards did as good a job as the lowest of the top five boards, Kentucky’s rate of 6.32 serious disciplinary actions per 1,000 physicians, it would amount to a total of 5,089 serious actions a year. That would be 2,381 more serious actions than the 2,708 that actually occurred in 2001. It is likely that patients are being injured or killed more often in states with poor doctor disciplinary records than in states with consistent top performances.

Negligent doctors are rarely disciplined with loss or suspension of their license for inferior care. Instead, state medical boards focus on more easily documentable offenses such as prescription drug violations and fraud convictions or disciplinary action in another state as potential indicators of substandard care. Congress could encourage better oversight through grants to state medical boards, tied to the boards’ agreements to meet performance standards. The following state reforms would help protect patients:

1. Reform medical board governance. States should sever any remaining formal, debilitating links between state licensing boards and state medical societies. Members of medical boards (and separate disciplinary boards, where present) should be appointed by the governor, and the governor’s choice of appointees should not be limited to a medical society’s nominees. At least 50 percent of the members of each state medical board and disciplinary board should be well-informed and well-trained public members who have no ties to health care providers and who, preferably, have a history of advocacy on behalf of patients. The governor should appoint members to the Medical Board whose top priority is protecting the public’s health, not providing assistance to physicians who are trying to evade disciplinary actions.

2. Beef up medical board funding and staffing. State legislatures should permit medical boards to spend all the revenue from medical licensing fees, rather than being forced to give part to the state Treasury. The medical boards should raise their fees to $500 a year. All boards could benefit from hiring new investigators and legal staff. Boards should employ adequate staff to process and investigate all complaints within 30 days, to review all malpractice claims filed with the board, to monitor and regularly visit doctors who have been disciplined to ensure their compliance with the sanctions imposed, and to ensure compliance with reporting requirements. They should hire investigators to seek out errant doctors, through review of pharmacy records, consultation with medical examiners, and targeted office audits of those doctors practicing alone and suspected of poor care.

3. Require risk prevention. States should adopt a law, similar to one in Massachusetts, that requires all hospitals and other health care providers to have a meaningful, functioning risk prevention program designed to prevent injury to patients. Massachusetts also requires all adverse incidents occurring in hospitals or in doctors’ offices to be reported to the medical board.

4. Require periodic recertification of doctors based on a written exam and audit of their patients’ medical care records.

Refine the Malpractice Insurance System

Some adjustments to medical liability insurers’ practices could benefit both doctors and patients:

5. Institute experience rating. Doctors should be rated on performance for malpractice premiums. Doctors with numerous malpractice claims must be reviewed and higher premiums imposed so that they are discouraged from practicing and competent doctors do not subsidize them.

6. Spread the risk more broadly. The number of classifications of doctor specialties for insurance rating purposes should be reduced. Risk pools for some are too small and thus overly influenced by a few losses and the concentration in a few specialties of doctors handling the highest risk patients. Often the high-risk patients are "referred up" from general practitioners who do not bear any of the risk.

Empower Patients with More Information

Public Citizen has long sought greater consumer access to information about doctors, and there have been recent improvements in making that information available. Most state medical boards now provide some physician information on the Internet, but the information about disciplinary actions varies greatly, is often inadequate and can be difficult for people to access. To read Public Citizen’s survey of state medical board Web sites, go to: http://www.citizen.org/publications/release.cfm?ID=7168

7. Open the National Practitioner Data Bank. Information about doctor discipline, including state sanctions, hospital disciplinary actions and medical malpractice awards is now contained in the National Practitioner Data Bank. HMOs, hospitals and medical boards can look at the National Practitioner Data Bank. Unfortunately, consumers cannot because the names of physicians in the database are kept secret from the public. Congress should lift the veil of secrecy and allow the people who have the most to lose from questionable doctors to get the information they need to protect themselves and their families. But until Congress finds the will to open up this information, Public Citizen will provide the public with as much of the data as we can obtain.

September 23, 2002

1 Source: Public Use file of the National Practitioner Data Bank, 4/02 release; total number of doctors in the U.S. at end of 2001 was 836,156 per American Medical Association.
2 Sloan et al, "Medical Malpractice Experience of Physicians: Predictable or Haphazard?" 262 JAMA 3291 (1989)
3 www.questionabledoctors.org

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