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Statement on Medical Malpractice

Statement on Medical Malpractice by Sidney M. Wolfe, MD Director, Public Citizen’s Health Research Group

Better regulation of doctors by greatly increased doctor discipline coupled with disclosure to patients of much more information about doctors would greatly diminish, and thereby prevent, a large proportion of negligently-caused injury and death of patients and the malpractice litigation and expenses that occur.

Most state medical boards are doing a dangerously lax job in enforcing their state medical practice acts and adequately disciplining physicians. Every year we have calculated the state medical board disciplinary rates (serious actions per 1,000 doctors). The states doing the most discipline are disciplining between 10 and 15 times more doctors each year (per 1,000 doctors) than the states doing the worst job. Last year, for example, Arizona, the state with the highest rate of discipline in the country, had a rate of 10.52 physicians per 1,000 doctors in the state, 14.4 times higher than the rate of 0.73 in the District of Columbia. I am not aware that the doctors and doctor organizations who are marching on state capitals demanding tort reform are similarly demanding doctor discipline reform to increase the amount of discipline their state medical boards are doing and thereby helping to prevent medical malpractice.

Although data about specific, named doctors in the federally-funded National Practitioner Data Bank (NPDB) is kept secret from patients and doctors, overall statistics show that since the data bank started in September, 1990, 5.1 percent of the doctors in the U.S. account for 54.2 percent of the number of malpractice payouts. These are physicians against whom two or more malpractice payouts have been made. In other words, most repeat offenders are still practicing, usually without ever having had any disciplinary actions taken against them by state medical boards.

Only 7.6 percent (one out of 13) of those doctors who have had two or more malpractice payouts against them have been disciplined in the last 12 years. Even those doctors with five malpractice payouts against them have rarely been disciplined with only 13.3 percent (fewer than one in seven) of the 1,192 U.S. physicians with five malpractice payouts having disciplinary actions. For the smaller number of physicians with 10 or more malpractice payouts against them, fewer than one out of three (32.1 percent) have had any disciplinary action taken against them.

The secrecy of the NPDB, the result of successful lobbying by the American Medical Association (AMA) in 1986 when the law setting it up was passed, prevents patients (and doctors) from learning, for example, the identity of those doctors who have had malpractice payouts against them and from possibly deciding not to use them as their physician. Similarly, the identity of the 10,553 physicians in the NPDB who have either lost or had restrictions placed on their hospital admitting privileges is kept secret, depriving patients and doctors alike of this valuable information.

It is unethical for doctors to strike or refuse to give medical care to patients. Just as placing limits on financial recovery for patients, as advocated in tort reform, punishes patients, so too does refusing to give them medical care. Punishing patients instead of protecting them is a poor strategy to solve this problem.