Published online July 2, 2007
PEDIATRICS
Vol. 120
No. 1
July 2007, pp.
10-17
(doi:10.1542/peds.2006-3618)
Malpractice Claims Involving Pediatricians: Epidemiology and Etiology
Aaron E. Carroll, MD, MSa,b and
Jennifer L. Buddenbaum, MHAa
a Children's Health Services Research, Indiana University School of Medicine, Indianapolis, Indiana
b Regenstrief Institute for Health Care, Indianapolis, Indiana
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ABSTRACT
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OBJECTIVE. Our goals were to examine malpractice claims data that are specific to the specialty of pediatrics and to provide a better understanding of the effect that malpractice has on this specialty.
METHODS. The Physician Insurers Association of America is a trade association of medical malpractice insurance companies. The data contained in its data-sharing project represent 
25% of the medical malpractice claims in the United States at a given time. Although this database is not universally comprehensive, it does contain information not available in the National Practitioner Data Bank, such as information on claims that are not ultimately paid and specialty of the defendant. We asked the Physician Insurers Association of America to perform a query of its data-sharing project database to find malpractice claims reported between January 1, 1985, and December 31, 2005, in which the defendant's medical specialty was coded as pediatrics. Comparison data were collected for 27 other specialties recorded in the database.
RESULTS. During a 20-year period (1985–2005), there were 214226 closed claims reported to the Physician Insurers Association of America data-sharing project. Pediatricians account for 2.97% of these claims, making it 10th among the 28 specialties in terms of the number of closed claims. Pediatrics ranks 16th in terms of indemnity payment rate (28.13%), with dentistry ranked highest at 43.35%, followed by obstetrics and gynecology at 35.50%. Indemnity payment refers to settlements or awards made directly to plaintiffs as a result of claim-resolution process. Data are presented on changes over time, claim-adjudication status, expenses on claims, the causes of claims, and injuries sustained.
CONCLUSIONS. Malpractice is a serious issue. Some will read the results of this analysis and draw comfort; others will view the same data with alarm and surprise. Regardless of how one interprets these findings, they are important in truly informing the debate with generalizable facts.
Key Words: malpractice • pediatricians
Abbreviations: AMA—American Medical Association • NPDB—National Practitioner Data Bank • JVR—Jury Verdict Research • PIAA—Physician Insurers Association of America
The medical malpractice liability system in the United States is meant to serve 2 purposes: (1) to provide compensation to individuals who suffer negligent medical injuries, and (2) to deter professional negligence.1 Many feel that our current medical liability system is broken, pointing to issues such as rising medical malpractice premiums,2,3 untimely and inequitable compensation for truly injured patients,1 and the questionable impact that litigation has on health care quality, cost, and access to care.1,2,4 This has led to the emergence of medical malpractice as a hotly debated issue on the national health policy stage.4
The American Medical Association (AMA) has deemed that America is in the midst of a medical liability crisis and is aggressively pursuing medical liability reform.5 In support of this position, they cite the rapid rise in jury awards that has occurred between 1997 and 2003 (increasing from a median award of $157000 to $300000) and the similar escalations in settlement amounts (increasing from an mean of $212861 to $322544).5 According to the General Accounting Office, losses on medical malpractice claims, which make up the largest part of insurers’ costs, seem to be the primary driver of malpractice insurance rate increases over the long run.3 These losses included both payments to plaintiffs to resolve claims and the costs associated with defending claims. The AMA believes that rising premiums are resulting in a patient access crisis as physicians are forced to limit services, retire early, or move to states where liability premiums are stable.
Data have demonstrated that certain specialties have been impacted more than others. For example, malpractice premiums for all physicians nationwide increased an average of 15% between 2000 and 2002, whereas specialties such as obstetrics and gynecology (22%), general surgery (33%), and internal medicine (33%) have seen higher increases.6 It is important that each specialty understand the etiology, epidemiology, and pathology of malpractice claims because it can provide insight into steps that can be taken to decrease the risk of such claims. Although many specialties have begun to explore their own data, to date only limited data have been presented regarding malpractice claims within the specialty of pediatrics.7 The majority of pediatric data published have related to subspecialties, such as pediatric emergency medicine, radiology, or neonatology.8–10
The American Academy of Pediatrics’ Division of Health Policy has monitored pediatricians’ experiences with medical liability since 1987 through its Periodic Survey of Fellows.11 This survey is a self-administered questionnaire mailed to a random sample of 1600 active US members of the Academy and assesses topics such as frequency of suits, demographics of defendants, disposition of suits, and plaintiff insurance status. The most recent survey took place in 2001 and found that 26% of pediatricians surveyed reported ever having a claim or suit brought against them (excluding claims during residency). Of those who had experienced a claim, 36% of the cases were settled out of court and 33% were dropped by the plaintiff. Only 3% of pediatricians reported that the plaintiff won their case.
A recent article published in Pediatrics by Kain and Caldwell-Andrews7 used data from the National Practitioner Data Bank (NPDB) to examine child-related malpractice payments. This study looked at malpractice payments involving children 
19 years of age reported between February 1, 2004, and December 31, 2005, to the NPBD. Because the NPDB does not record data regarding the defendant's specialty, the data reported include what can be considered high-risk specialties in terms of malpractice claims, such as obstetrics and gynecology. In fact 28% of the presented cases were obstetrics related. Inclusion of these types of claims most likely leads to inflated results in terms of the state of medical liability for pediatricians. Therefore, the Kain and Caldwell-Andrews article does not truly provide a clear picture of what impact malpractice is having on pediatricians.
The aim of this article was to examine malpractice claims data that are specific to the specialty of pediatrics, so as to provide a better understanding of the effect that the current malpractice crisis is having on this particular specialty and to determine whether this data provides any insight into how medical malpractice claims can be avoided.
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METHODS
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Selection of a Data Source
There are 3 primary sources of data available on medical malpractice judgments and awards: (1) NPDB, (2) Jury Verdict Research (JVR), and (3) Physician Insurers Association of America (PIAA) data-sharing project. Each of these data sources has its advantages and disadvantages.
The NPDB is maintained by the Department of Health and Human Services, and under the Health Care Quality Improvement Act of 1986, all payments in settlement of malpractice claims must be reported to this system.12 The NPDB is, therefore, the most comprehensive source of information about claims. Although data can be queried on the basis of plaintiff age, it is not possible to query the data on the basis of a specific physician specialty. Therefore, this data source cannot be used for this specific analysis, because physician specialty was our key search criterion.
The JVR collects data on jury verdicts only as reported to it by plaintiff's attorneys, court clerks, and stringers.13 Because jury verdicts only represent a very small percentage of medical malpractice claims, and these verdicts are significantly higher than the average settlement, this data provides a skewed and limited picture of the medical malpractice system.
PIAA is a trade association of >50 medical malpractice insurance companies.14 Together, these companies insure 60% of all private practicing physicians and surgeons in the United States. Since 1985, PIAA has maintained the PIAA data-sharing project, a database that pools information from >15 member-insurance companies, representing 25% of the medical malpractice claims in the United States at a given time. All data are collected in a generic format where the identity of the individual claimants, insureds, and other parties are not recorded. These data are regularly analyzed for member organizations to document claim trends and identify underlying patient safety issues that result in malpractice cases. Although this database is not universally comprehensive, it does contain information not available in the NPDB, such as information on claims that are not ultimately paid and specialty of the defendant. Therefore, this data provides a broader view of the malpractice claims system than the NPDB.
Because the purpose of this article is to examine malpractice claims data that are specific to the specialty of pediatrics, the PIAA data-sharing project was chosen over the other 2 data sources.
Data Analysis
We asked PIAA to perform a query of its data-sharing project database looking at malpractice claims reported between January 1, 1985, and December 31, 2005, where the defendant's medical specialty was coded as that of pediatrics. PIAA's definition of pediatrics includes several different pediatric subspecialties, including neonatology, perinatology, and pediatric surgery. In addition, to compare pediatricians with other medical specialties, comparison data were pulled for the 27 other specialties recorded in the database using the same time- frame criteria.
Definitions
Terms are defined as follows14:
- Claim: any written or oral demand for compensation in the form of money or services, with no legal paper having been filed in court. Policy provisions require insureds to notify the insurance company immediately on notice of a claim. Many claims that are unresolved later become suits.
- Indemnity: refers to settlements or awards made directly to plaintiffs as a result of claim-resolution process.
- Medical misadventure: descriptive terminology relating to an alleged principal departure from accepted medical practice. Twenty-eight misadventures are used in this study and can be broadly categorized as diagnosis related, procedure related, or case management related.
- Severity: severity of a patient's injury is coded using the National Association of Insurance Commissioners severity codes 1 (emotional injury only) through 9 (death).
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RESULTS
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During a 20-year period (1985–2005), there were 214226 closed claims reported to the PIAA data-sharing project. Pediatricians account for 2.97% of these claims (N = 6363), ranking it 10th among the 28 specialties in terms of the number of closed claims. Obstetric and gynecologic surgeons had the highest number of total closed claims at 29453, accounting for 13.75% of the closed claims reported to PIAA. For pediatrics, 1790 of the closed claims were paid for a total indemnity of over $460 million. This makes pediatrics 16th in terms of indemnity payment rate (28.13%), with dentistry ranked highest at 43.35%, followed by obstetrics and gynecologic surgery at 35.50%. The indemnity payment rate for pediatrics has varied over time, with the lowest rate occurring in 2004 (20.14%) and the highest rate occurring in 1990 (33.45%) (Fig 1).
The mean indemnity payment for pediatrics between 1985 and 2005 was $261263 with a median payment amount of $100000, making it the seventh highest out of the 28 specialties. Neurosurgery had the highest median indemnity at $150000 and oral surgery had the lowest at $13500 (Fig 2). Indemnity payments have been steadily increasing over time for pediatrics. Using 2005 dollar values, the mean indemnity paid in 1985 was $232987 with a median payment of $65287. This has increased to an mean indemnity payment of $395997 in 2005 and a median payment of $270000 (Fig 3). Large loss claims (ie, those with an indemnity payment 
$500000) made up 17.54% of paid claims. The majority of paid claims (54.47%) had an indemnity payment of less than $100000.
Defense-related expenses were reported for 5402 of the 6363 closed pediatric claims between 1985 and 2005. Total defense expenses for these claims came to more than $133 million with the mean expense for a pediatric claim being $24634. Pediatrics ranked fourth highest among the 28 specialties in terms of mean expenses paid (Fig 4). Using 2005 dollar values, the mean expense for a malpractice claim has increased from an mean of $19657 in 1985 to $40851 in 2005 (Fig 5) with mean expenses in 2005 being considerably lower for cases where no indemnity was paid ($28779) verses paid claims ($67502). Between 1985 and 2005, the mean defense attorney expense for pediatric claims was $15750, and the mean expert witness expense was $2692. The ratio of expenses to indemnity for all closed cases between 1985 and 2005 was 28.45 cents expense per indemnity dollar.
Figure 6 shows the percentage of closed claims between 1985 and 2005 by adjudication status for pediatrics. A total of 5.19% of closed claims resulted in a verdict, and the vast majority of these claims (79.01%) were won by the defense. The mean defense expense for claims that resulted in a defendant verdict was $59147, with a median expense of $39871. Of claims that resulted in a plaintiff verdict, the mean indemnity payment was $478470 (median payment: $239450), and mean defense expenses were $74958 (median expense: $57599). A total of 26.66% of claims resulted in a settlement in favor of the plaintiff. The mean indemnity in these cases was $250650 (median indemnity: $100000), and average defense-related expenses came to $33710 (median expense: $20973). Claims that were dropped, withdrawn, or dismissed had by far the lowest defense related expenses: $11293 mean and $2747 median.
Most pediatricians involved with a claim reported to the PIAA data-sharing project between 1985 and 2005 were men (78.96%), board certified (81.51%), and had attended a US medical school (66.10%). A total of 60.9% had previous experience with a claim. A majority of claims involved care received either at a hospital location (49.01%) or in a practitioner's office (43.41%). Of those claims involving care received at a hospital, 69.77% of the hospitals were categorized as nonteaching institutions.
The 5 most common diagnoses involved in pediatric malpractice claims are presented in Table 1. It is important to note that these claims only represent 21.07% of closed claims reported between 1985 and 2005. Of the top 5, brain-damaged infant had the highest average indemnity payment and the largest average defense expenses payment. The severity of injury varied greatly when the medical diagnosis was routine infant or child health check, respiratory problems in the newborn, or appendicitis. However, 33.33% of meningitis related claims dealt with a plaintiff who had died, and in cases where the diagnosis was brain-damaged infant, the vast majority of plaintiffs (90.93%) had either major permanent injury or their condition was coded as grave.
The top 5 most prevalent medical misadventures for pediatrics are presented in Table 2. Errors in diagnosis are the most prevalent medical misadventure (31.87%) and include those claims involving a failure to diagnosis or an incorrect diagnosis. This type of misadventure also has the highest median indemnity payment and defense expenses. The most common medical condition associated with this medical misadventure was meningitis, but this only represents 8.17% of the claims coded as having an error in diagnosis as the medical misadventure.
The second most prevalent misadventure was no medical misadventure (21.63%), which refers to those claims that are believed to have legal merit but have no associated medical mishap. An example of this type of medical misadventure would be a claim that is filed where a newborn infant is found to have a brachial plexus injury that occurred during delivery. The claim might name several defendants, including the anesthesiologist who was in the room during the delivery, although there was nothing in the chart to show that the anesthesiologist was at fault. In this case, the anesthesiologist's insurer would code this misadventure as no medical misadventure, because there was no evidence that the anesthesiologist or previous actions taken by the anesthesiologist had anything to do with the brachial plexus injury. This type of misadventure has the lowest indemnity payment rate of the top 5 most prevalent medical misadventures. The most common medical conditions associated with this medical misadventure in order of prevalence are brain-damaged infant (11.82%), routine infant or child health check (4.28%), meningitis (3.46%), respiratory problems in the newborn (2.56%), and birth (2.14%).
Improper performance, the third most common misadventure (13.25%), includes those claims where an act performed by a physician has resulted in a procedure being performed incorrectly. An example would be a circumcision procedure in which the foreskin was cut too short or the glans penis was injured resulting in deformity of the penis. The 2 most prevalent medical conditions associated with the medical misadventure of improper performance are brain-damaged infant (10.44%) and circumcision (5.11%).
A total of 9.46% of claims involve the failure of a physician to monitor the care of a patient or claims where the physician involved in a patient's care has neglected the management of the treatment. These medical misadventures are labeled failure to supervise or monitor care, and they have the highest indemnity payment rate of the top 5 most prevalent medical misadventures. Once again, brain-damaged infant, respiratory problems in the newborn, and meningitis are among the most common medical conditions associated with this medical misadventure. However, asthma and convulsions are also among the top 5.
The fifth most prevalent medical misadventure was medication error (4.70%). This code applies to a claim if a medication problem is the central issue of a claim or if failure to prescribe is the central issue. The most prevalent medical conditions associated with this medical misadventure in decreasing order of prevalence are asthma, routine infant or child health check, heartburn, bronchitis, and convulsions.
In terms of total indemnity payments between 1985 and 2005, the 5 most expensive medical misadventures for pediatricians in decreasing order are errors in diagnosis, failure to supervise/monitor case, improper performance, no medical misadventure, and delay in performance. The medical misadventure of delay in performance refers to cases where the physician actually defers testing or treatment of a patient.
Table 3 presents data regarding the severity of a plaintiff's injury between 1985 and 2005 for pediatrics. Most commonly, closed claims involve cases where death was the resultant injury (28.15%). Death also made up the largest percentage of paid claims (29.72%). However, grave injuries resulted in the largest percentage of total indemnity payments at 32.43% and a mean indemnity payment of $515802.
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DISCUSSION
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Malpractice lawsuits are rightly the source of much consternation for physicians, and these reservations are often only worsened by anecdotal reports. In this article, we provide a great deal of data about the experience of pediatricians with malpractice and how pediatricians compare with other specialties. Although these data cannot remove the consternation physicians feel regarding the malpractice situation, it does serve to better inform the debate. Although pediatricians ranked 10th in paid claims reported, they represent <3% of paid claims. This number is somewhat less alarming than that reported by Kain and Caldwell-Andrews,7 who found that 14% of malpractice payments in 2004 involved a patient in the pediatric age group. We also found that in general, 28% of cases result in an indemnity payment, at a median of $100000. This data, in general, paints a much rosier picture than that seen in the Periodic Survey of Fellows in 2001.11
Even more concerning to pediatricians than indemnity paid is what it might cost to defend themselves in a malpractice case. Although the costs of mounting a defense in cases should not be minimized, in 2005, they averaged less than $29000 when no indemnity was paid and less than $68000 when an indemnity was paid out. In addition, only 5% of claims went to verdict, and only 20% of those claims (1% of claims overall) resulted in a verdict for the plaintiff.
The conditions most commonly seen in malpractice claims are brain-damaged infant and meningitis, but these represent only a very small percentage of all claims filed (14%). The most common medical misadventure was error in diagnosis, followed by no medical misadventure. With no medical misadventure being this common, it is sure to cause many pediatricians to worry, because this means a significant number of cases involve no malpractice. It is important to note, however, that significantly less of these cases (only 6% of them) are actually paid. Although in an ideal world no cases without actual malpractice would result in payments or verdicts for the plaintiff, the good news is that these truly are a minority of cases in the malpractice system for pediatricians. However, it is also important to remember that all malpractice cases, even those that result in a favorable verdict for the physician, still have costs both emotionally and monetarily (ie, defense expenses).
As with all studies, there are limitations to this work that warrant consideration. The most obvious limitation lies with our choice of data source, the PIAA data-sharing project. This data source is not comprehensive, because it only represents 25% of medical malpractice claims in the United States. However, the PIAA data-sharing project is the only option for analyzing claims by specialty and for examining claims that do not result in payment, which account for a very significant percentage of claims. It is also important to note that this study does not address the costs of malpractice insurance in any way. For many physicians, this is of even greater concern than malpractice lawsuits. Whether the increase in insurance premiums is warranted or appropriate is not the objective of this analysis and warrants additional study.
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CONCLUSIONS
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Malpractice is a serious issue, and one of concern for pediatricians and physicians. Many times, discussion of this issue is fueled only by anecdotes or generalizations. This study is not meant to end discussion on how to reform malpractice or improve care, and it is not meant to minimize the costs, both tangible and intangible, to physicians involved in malpractice cases. Instead, this study is meant to help inform the debate. There are some who will read the results of this analysis and draw comfort; others will view the same data with alarm and surprise. Regardless of how one interprets these findings, they are important in truly informing the debate with generalizable facts instead of politically motivated anecdotes.
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ACKNOWLEDGMENTS
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All data came from the PIAA data-sharing project (Rockville, MD). We thank Lori Bartholomew and Catherine Bernstein at PIAA for their assistance.
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FOOTNOTES
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Accepted Feb 16, 2007.
Address correspondence to Aaron E. Carroll, MD, MS, HITS Building, Suite 1020, 410 W 10th St, Indianapolis, IN 46202. E-mail: aaecarro{at}iupui.edu
The authors have indicated they have no financial relationships relevant to this article to disclose.
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J. M. Freeman and A. D. Freeman
Malpractice Claims Involving Pediatricians
Pediatrics,
October 1, 2007;
120(4):
933 - 934.
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S. M. Donn and G. McAbee
Pediatricians and Medical Malpractice
Pediatrics,
July 1, 2007;
120(1):
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ABSTRACT
METHODS
