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Doc bites man.

Eric Voth, a doctor of internal medicine in Topeka, Kansas, faces a $30 million malpractice lawsuit for having offered an expert's opinion. According to the American Medical News (11 May 1992), Dr. Voth was an expert witness in a case involving a physician who allegedly provided patients with unnecessary prescriptions for sedatives and tranquilizers, which they then sold. The lawsuit, brought by the defendant in the case, charges that Voth "acted recklessly and negligently in acting upon less than adequate information and misinformation" in giving his opinion, and that doing so was "analogous to misdiagnosis."

The suit against Voth is only a more recherche version of a thorn that has rested in the side of the medical profession since the 1970s. The American Medical Association reports that the annual rate of malpractice suits against physicians increased from an average annual rate of 3.0 per 100 physicians before 1980 to a high of 10.2 per 100 in 1985, to 7.7 per 100 in 1990 (the last year for which figures are available). A very large number of these claims--between 70 and 80 percent--are closed with no payment to the patient, but the experience for the physician is not a pleasant one. How much suing is really going on? How much suing do physicians think is going on? And how are they responding to the threat they perceive?

To answer these and related questions, the Harvard Medical Practice Study, whose results are published in three parts in the New England Journal of Medicine (7 February and 25 July 1991), took a detailed look at the incidence of malpractice and claims in New York State. The study determined that between 2,967 and 3,888 malpractice claims are filed by patients each year in the state. Only one claim makes its way into court for every eight cases of injury caused by medical negligence. Moreover, large numbers of claims were generated from injuries that were not caused by negligence. So only one in fifty negligent injuries actually results in a claim. And of these, only half lead to any sort of payment.

According to Troyen Brennan, a leading researcher of the Harvard study, the New York data can be understood as follows. Out of 10,000 hospital discharges, 9630 are uneventful. In 270 other cases an adverse event occurs but not through negligence. Of the remaining 100 cases in which negligence did cause injury, in 98 instances no claim is made, in 1 instance a claim is made but not paid, and in the final instance a claim is made and paid.

Yet when physicians were asked to assess what the chances were that a patient injured by neglect would sue, they perceived the risk to be thirty times greater than it actually was, and they saw the risk of groundless suits to be one to three times greater than real, depending on their subspecialty.

This perception of danger has prompted more than eight out of ten physicians to admit to ordering tests that are not medically necessary to protect themselves against the lawyers (American Medical News, 25 May 1992). Malpractice insurance forms about 5 percent of typical practitioners' overhead, and among younger physicians in particular there is a distinct air of defensiveness to the manner in which they practice medicine.

A few doctors have found a new way to cope with malpractice claims. The 25 May issue of the American Medical News reports a small but growing number of physicians who are suing lawyers. These actions have an admittedly quixotic character to them, as the doctors are fighting the enemy on his own turf. Nor does the medical profession tend to prevail. Yet a pediatric surgeon in Kansas recently won $150,000 after suing a lawyer who brought a malpractice case against him, and with the help of an amicus brief filed by the AMA, a Philadelphia obstetrician has successfully overturned a dismissal of his suit against his attorney, who he claims destroyed his career through incompetent handling of a suit. The claim against the attorney is expected to go to trial this year.

Given the current atmosphere of litigiousness and the nervousness it produces, it's small wonder that physicians are sometimes tempted to give the lawyers a taste of their own medicine.
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Title Annotation:medical malpractice claims
Author:Nelson, Hilde L.
Publication:The Hastings Center Report
Date:Sep 1, 1992
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