PEDIATRICS Vol. 118 No. 5 November 2006, pp. 2266-2267 (doi:10.1542/peds.2006-2496)
LETTER TO THE EDITOR |
Pediatric Malpractice
Ronald S. Fischler, MD, FAAPPresident-Elect
American Academy of Pediatrics, Arizona chapter
Phoenix, AZ 85004
Chairman, 2005–present
Law Reform Subcommittee
Arizona Medical Association
To the Editor.—
I was pleased to see the subject of medical malpractice discussed in the pages of the August issue of Pediatrics.1 The article was based on the National Practitioner Data Bank and concluded that paid claims against pediatricians were approximately half of adult practitioners, occurred approximately half as often, and averaged approximately $250000 per claim, with an increasing number of claims involving residents. Although in some respects reassuring, the authors rightly conclude that pediatricians are increasingly becoming the target of lawsuits.
For the Arizona chapter of the American Academy of Pediatrics (AAP), I reviewed several other sources of data that would be of interest to pediatricians. The Physician Insurers Association of America collects data from all of the physician-owned mutual insurance carriers nationally and according to state. Its 2004 data for pediatrics indicate that pediatrics is the eighth most commonly sued specialty. The risk of being sued today is about twice what it was 10 years ago and is about once in 5.6 years for the average pediatrician (James Carland, MD, FAAP, CEO, Mutual Insurance Co of Arizona, written and verbal communication, 2005). Malpractice premiums for pediatricians increased fourfold in this time frame in Arizona (James Carland, MD, FAAP, CEO, Mutual Insurance Co of Arizona, written and verbal communication, 2005). Suits are categorized by the nature of the error. Although errors in diagnosis accounted for one third of lawsuits, other categories included improper performance (resuscitation), failure to supervise (nurses, residents), medication error, and delay in referral. Alarmingly, 34% of paid claims involved "no medical misadventure," indicating that no error could be discerned. This is the fastest growing category and should be of considerable concern to all physicians.2
That a significant proportion of paid claims might involve no error has been the subject of a variety of data. The Arizona Medical Board reviews every case involving a paid claim; in only 7% was a breach in the quality of care identified (Arizona Medical Board 2005 data on medical malpractice review [Tim Miller, JD, director, verbal communication, 2005]). Harvard studies of the early 1990s that compared claims with independent physician reviews of adverse events in hospitals revealed that 83% of suits involved cases in which no error could be found.3
A recent Harvard study based on independent physician review of dollars paid and 34% of claims involved no discernable error.4 Regardless of whether the real number is 16% or 90%, a very substantial number of lawsuits are settled when no discernable error has occurred.
The reasons for a growing number of nonmeritorious suits are complex but relate to 2 principal factors: (1) the low burden of proof of negligence and (2) the court's use of expert witnesses and the lack of accountability for the scientific accuracy of their testimony.
Efforts to correct these issues are ongoing and will require a concerted effort from many sides.
In Arizona this year, a bill to raise the burden of proof to "clear and convincing" passed both houses of the legislature but was vetoed by the governor when former supreme court judges now practicing as trial attorneys wrote a letter to the governor suggesting that the bill was unconstitutional.
The AAP is following the lead of other specialties such as obstetrics, orthopedics, and neurosurgery to provide peer review and thereby accountability for testimony given by members (adopting the American Medical Association's voluntary attestation statement for expert witness testimony and establishing a grievance mechanism to review erroneous and unscientific testimony given by members, with sanctions for members who give such testimony). We are hopeful that these changes will be passed by the AAP Committee on Medical Liability and Risk Management and adopted by the board of the AAP and that pediatricians become more aware of the problem and potential solutions.
REFERENCES
- Kain ZN, Caldwell-Andrews AA. What pediatricians should know about child-related malpractice payments in the United States.
Pediatrics. 2006;118
:464
–468
[Abstract/Free Full Text] - Physician Insurers Association of America. 2004 data on pediatrics [data available by purchase only]. Washington, DC
- Brennan TA, Leape LL, Laird NM, et al. Incidence of adverse events and negligence in hospitalized patients: results of the Harvard Medical Practice Study I. N Engl J Med. 1991;324 :370 –376[Abstract]
- Studdert DM, Mello MM, Gawande AA, et al. Claims errors and compensation payments in medical malpractice litigation.
N Engl J Med. 2006;354
:2024
–2033
[Abstract/Free Full Text]
PEDIATRICS (ISSN 1098-4275). ©2006 by the American Academy of Pediatrics
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