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Common Causes of Primary Care Malpractice Reviewed – Lawyers, Broken System Blamed

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A recent article published in BMJ Open assessed the epidemiology of (meaning the causes and characteristics of and patterns involved in) medical malpractice cases asserted against primary care physicians, primarily family practice doctors and internists.  The authors reviewed over 7,000 medical articles for data related to trends in malpractice cases against PCPs worldwide (although only English language literature was used).

There are several interesting findings of note.

For instance, in a US review of 239,756 closed malpractice claims for 28 specialties during the period 1985-2008, family practitioners ranked third overall, representing 11.5% of all claims.  In another US review (n=1452 claims), primary care ranked third of the nine specialties studied, representing 16% of the total claims reviewed.

In evaluating trends over time, the authors concluded:

In the USA, the annual prevalence of malpractice claims against family practitioners appears to have remained relatively stable over the past two decades.  When compared with other specialties, family practice is consistently ranked in the top five most sued specialties on US medical indemnity databases.

In terms of the most common instances of malpractice, the data showed the following:

 The medical misadventure most frequently cited related to failure to or delay in diagnosis, which accounted for 26-63% of all malpractice claims across included studies.  The most commonly recorded patient outcome was death, which ranged between 15% and 48% of all outcomes recorded in malpractice claims.  One study found that failure in judgment, vigilance or memory and knowledge deficit were the most frequent factors involved…In adults, the commonest missed or delayed diagnoses recorded were largely consistent across studies, namely (1) cancer (most commonly breast, colon, melanoma, lung and female genital tract) and (2) circulatory system (most commonly myocardial infarction)…Overall, the second commonest medical misadventure cited in malpractice claims was medication error ranging from 5.6% to 20% across included studies.

The BMJ Open article, published on July 18, 2013, was quickly cited in numerous news outlets (here, here and here).  Of all the data points revealed in the study, CBSNews.com strangely chose to pursue the “tort reform” angle, eliciting a comment on behalf of one of the largest professional liability insurance companies in the U.S.

 “Nobody benefits but lawyers,” Dr. Richard E. Anderson, chairman and CEO of the physician-operated medical malpractice insurer, The Doctors Company, said to CBSNews.com. He called the system broken, because the same diagnostic and therapeutic challenges exist throughout the world, while the litigation system demands perfection among doctors.

While it is unclear what question was asked of him, Dr. Anderson’s comment is a curious response to the published findings.  The article simply cites data confirming those areas of medical negligence that most commonly result in serious injuries and death and lead to malpractice lawsuits.  By referencing a “broken” system and insinuating that the lawyers are somehow to blame for the incidence of medical malpractice, Dr. Anderson offers nothing more than lazy and debunked stock pro-tort reform platitudes.

Contrary to Dr. Anderson’s complaints, the law does not require medical perfection.  In order to prove a case of medical malpractice, an injured patient must demonstrate – through expert medical testimony – that a doctor failed to comply with minimally accepted standards of medical care.  In other words, in cases involving misdiagnosis, a claimant must show that no reasonable physician presented with the circumstances at issue would have missed the correct diagnosis.  It is a high burden, and only those doctors who blatantly fail to exercise reasonable care are held responsible for the consequences under the law.

This begs the question – how exactly does a case of misdiagnosis benefit “the lawyers?”  When a doctor fails to recognize a diagnosable cancer (the most common instance of misdiagnosis, according to the BMJ article), precious time and opportunity for treatment is lost that can lead to fatal consequences (death being the most common injury cited).  When a parent and wage earner dies an unnecessary death because of preventable physician malpractice, then only the justice system is there to hold the negligent health care provider accountable.

Does a family that has lost a loved one due to medical malpractice “benefit” when a negligent doctor and his insurance company are held financially responsible for substandard care?  Do future patients “benefit” when a doctor who failed to make a reasonable diagnosis changes his approach because he has been held accountable for a prior mistake?

The available data suggests that the incidence of substandard medical practice in the primary care setting is unacceptably high, resulting in numerous preventable injuries and deaths.  It is disappointing that, rather than use this information to fight for patient safety initiatives, certain camps have used the lectern to once again trot out their tired lawyer bashing routine.

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