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Our Philosophy:  Cost-effective solutions depend not only on the skillful use of appeal and hearing procedures,
but also on an understanding and use of the practical, political agendas that drive the actions of regulatory bodies.

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Most Physicians Will Face Malpractice Claims

The investigators calculated the annual percentage of physicians in each specialty that faced a claim.

Most Physicians Will Face Malpractice ClaimsAugust 17, 2011 12:54 PM
While most physicians in the United States will face a malpractice lawsuit at some time in their careers, a new study finds the vast majority of those suits will not result in payment to a plaintiff.

The report, which will appear in the Aug. 18 edition of The New England Journal of Medicine, provides the most comprehensive analysis of the risk of malpractice claims by physician specialty in more than two decades and finds that the annual chance of a claim varies from around 5 percent in low-risk specialties to nearly 20 percent in specialties at the highest risk.

"Physicians in any specialty are generally interested in knowing how likely they are to face a malpractice claim, whether they are likely to make a payment and how large such a payment would be," said Anupam B. Jena, a member of the Department of Medicine at Massachusetts General Hospital and the study's lead author. "Naturally, physicians in each specialty believe they are getting sued more often than average. But while anecdotes abound, actual facts on who is getting sued and for how much have been unavailable until now. Identifying which specialties are most likely to face frequent litigation may help guide malpractice reform."

Jena and his colleagues at the Harvard Kennedy School, the Leonard D. Schaeffer Center for Health Policy and Economics at USC and the RAND Corporation analyzed claims information covering the years 1991 to 2005 from a major malpractice insurer operating in all 50 states and the District of Columbia. The Schaeffer Center is a collaboration of the USC School of Policy, Planning, and Development (SPPD) and the USC School of Pharmacy.

Data collected reflected more than 230,000 physician-years of coverage involving almost 41,000 individual physicians. The investigators calculated the annual percentage of physicians in each specialty that faced a claim, distinguished claims that led to a payment - either from a court decision or an out-of-court settlement - and measured the size of those payments. They also determined which specialties faced higher or lower risks of either facing a claim or making a payment and calculated the career-long risks of facing claims for high- and low-risk specialties.

During each year of the study period, 7.4 percent of all physicians had a claim filed against them, but only 1.6 percent made a malpractice payment. Specialties with the highest risk of facing a claim were neurosurgery (19.1 percent), thoracic and cardiovascular surgery (18.9 percent) and general surgery (15.3 percent). The lowest risks were seen in family medicine (5.2 percent), pediatrics (3.1 percent) and psychiatry (2.6 percent). However, only about 20 percent of all claims actually led to a payment, and those specialties most likely to face claims were not always most likely to pay claims. The average claim payment was almost $275,000, and the cumulative career risk of facing a malpractice claim was 99 percent in the high-risk and 75 percent in low-risk specialties.

"We were surprised that the probability of facing at least one malpractice claim over the average physician's career was so high and particularly that so many claims did not result in payment," said Amitabh Chandra, professor of public policy at the Harvard Kennedy School and corresponding author of the report. "The malpractice insurance that physicians purchase does not insure them from the emotional costs of being involved in litigation. These 'hassle costs' have no social value, and given the frequency of litigation, our findings support physicians' perceptions of the inefficiency of the current malpractice system."

Co-author Seth Seabury, a member of RAND, added: "It is a near certainty that, over a lengthy career, a physician in a high-risk specialty will be accused of malpractice, but the vast majority of these suits will be unsuccessful. Calls for system reform will persist until a way is found to promote faster, less costly resolution of these claims while maintaining fair compensation for deserving patients."

Study co-author Darius Lakdawalla, director of research at the Schaeffer Center and associate professor at SPPD, concluded, “In the final analysis, everyone entering the field of medicine, no matter their specialty, can be reasonably confident that they will eventually face a malpractice claim. That speaks to the pervasiveness of malpractice litigation and the hold of the legal system over the medical profession.”

The study was supported by grants from the RAND Institute for Civil Justice and the National Institute on Aging.


Staying Under the Radar

8 ways to avoid scrutiny by state and federal regulatory agencies By Alan I. Kaplan

The California Medical Board, the Drug Enforcement Agency, Medicare and Medi-Cal have all been created to protect the public interest, and to regulate the practice of medicine. Although the constitution requires due process, none of these agencies are focused on ensuring fairness for physicians. As a result, physicians under investigation must be prepared to demonstrate that they are innocent of any wrongdoing, a process that can become ruinously expensive and time consuming. It’s better to take the first line of defense. Here are eight strategies to avoid attracting the attention of governmental auditors and investigators in the first place.

In order to understand and adapt these recommendations to your own circumstances, you must understand the basic political realities that drive the actions of government investigators. For example, the California Medical Board is appointed by the Governor, who, in turn, is (not surprisingly) sensitive to public opinion which, in turn, is (again not surprisingly) heavily influenced by articles in the news media criticizing the Board for being “too soft on doctors.” These articles, which are often occasioned by public events such as a celebrity drug overdose, or large malpractice awards [ital]do[ital] sell newspapers. The resultant pressure on the Governor translates to pressure on the Board’s administrative staff to produce more license revocations. The Board actually publishes revocation statistics on its website, and public comment at Board meetings often focuses on why the Board has not revoked more licenses this year as compared to last. Other agencies similarly gage their effectiveness (and their annual appropriations requests) on the number of doctors they have disciplined each year. As a result, agencies are typically anxious to find opportunities to investigate and discipline as many physicians as possible.

A variety of situations attract the attention of government investigators, and avoiding them should be a high priority for every physician.

1. Avoid conflict with ex-employees. This is especially true for office managers and bookkeepers. Every physician must delegate management of certain sensitive business matters to office managers, bookkeepers and others. These individuals become aware of confidential matters which, under the wrong circumstances, can attract disastrous government scrutiny, whether or not the physician has done anything wrong. The physician who fires their office manager for dishonesty, and reports them to law enforcement, runs the risk that the ex-employee will seek to divert attention from their misconduct by accusing the physician of billing fraud. In order to “stay under the radar,” physicians who terminate employees must try to motivate the employee to maintain a positive relationship with them and, in cases of employee misconduct, carefully weigh their options, and consult with counsel, before taking any action;

2. Diffuse adversarial interactions with patients. Patient complaints are given high priority by all government agencies. It is easy to file a complaint, as each agency’s website enthusiastically informs visitors. A patient who, for example, is dissatisfied with their disability award may conclude that their physician did not do enough to help them. Patients who have not paid their medical bill can create “counterclaims” for improper care. Cultural issues and language barriers can give rise to major misunderstandings, particularly between female patients and male physicians. Every physician must instruct their staff to be ultra-sensitive to patient expressions of dissatisfaction, and to report these to the physician who can then take appropriate steps to resolve the patient’s concerns, even involving intermediaries where appropriate. Special care is warranted when deciding whether to send an unpaid receivable to a collection agency. These decisions should be made on a case-by-case basis.

3. Assess and regulate your statistical profile. Many agencies screen providers using computerized “data mining” techniques to answer questions such as: Compared to other similarly situated physicians, How many abdominal ultrasounds does Doctor A prescribe or conduct? What volume of controlled substances does Doctor A purchase or prescribe? How many e/m codes of level 4 or higher does Doctor A bill? What are Doctor A’s per capita billings, particularly where “adjunct providers” such as physician assistants are used? How many of Doctor A’s patients are “shared” with other physicians who provide duplicate services? All of this information is easily available to state and federal regulatory agencies at the click of a mouse. All of it can easily invite scrutiny. It is crucial that every physician be aware of their statistical profile and to what degree they are a “statistical outlier.” Statistical information is available from various sources on the internet including the Centers for Medicare and Medicaid Services website, the CURES and ARCOS databases and through various organizations affiliated with the California Medical Association and the American Medical Association. Any “educational” letters from a regulatory agency advising the physician of “outlier” problems usually indicate that the physician is a possible target. Such letters must be treated very seriously.

4. Make your record-keeping practices transparent. Over the past ten years, the quality of medical record keeping has gradually improved and the degree of scrutiny caused by cryptic, illegible physician notes has increased. Investigators from the Medical Board, Medicare, DEA, and the insurance industry, commonly treat medical records like a reporter’s transcript. One hears the folksy (and utterly unsupportable) adage: “if it ain’t recorded, it didn’t happen.” Fortunately, the availability and quality of electronic health record systems is increasing at a rapid rate, and the cost is declining, with the vigorous support of the Obama administration. There are also many standardized forms in general circulation that, if properly filled in and annotated, will satisfy most regulators and expert reviewers. Medical documentation that contains full patient histories, interval histories and physical examination findings, coupled with evidence that the physician has recently undergone a medical record keeping course, are factors that will discourage the more vigorous investigations and audits.

5. Use internal audits appropriately. The Office of Inspector General mandates that every physician periodically audit their own medical records and, upon discovery of any errors, that they refund any overpayments. Contrary to ordinary logic (remember we are dealing with the government here) sending occasional refunds to payers generally has the affect of discouraging further government scrutiny, if for no other reason than because it distinguishes a physician from the vast numbers of their brethren who never conduct internal audits, and never make refunds. While no government agency will expressly admit this, it has been this writer’s experience of 30 years that appropriately conducted internal audits coupled with periodic refunds in almost any amount act as a powerful deterrent to government scrutiny. There are a variety of consultants available who will perform or assist in this process, and the physician’s own billers will often have the necessary skill.

6. Avoid attracting the attention of law enforcement. Almost anything a physician does that invites law enforcement scrutiny (for example, being arrested for driving under the influence, tax evasion, reckless driving, shoplifting, and so on) will be reported to the Medical Board. The commission of any crime can indicate that the physician’s judgment is impaired. This will then engage the scrutiny of the Medical Board and other agencies as well. The advice for the practicing physician is simple: in order to avoid the loss of your medical license, avoid any conduct that can result in criminal charges or arrests.

7. Encourage your staff to report suspicious activity by patients. Federal and state agencies have been known to use undercover operatives or informants who pose as patients. Suspicious activity that can indicate the presence of an operative includes: attractive, young (often female) patients complaining about conditions that warrant prescriptions for pain medications and other controlled substances; new patients who arrive without an appointment; patients who ask for controlled substance prescriptions before they are examined, and patients who socialize excessively with your staff. When the presence of an operative is suspected, the physician should take a more extensive history to probe for inconsistencies, reach the patient’s previous physician by telephone and review previous medical documentation before prescribing controlled substances.

8. Avoid business arrangements with non-physicians that attract scrutiny. Any medical practice that is, or appears to be, run by a non-physician can easily draw the attention of investigators because the non-medical “manager” will often encourage billing practices that increase cash flow at the price of the physician’s integrity. It is therefore crucial that practitioners verify exactly who they are working for and make sure that individual or entity is a licensed healthcare provider.

Alan I. Kaplan is the owner of the Law Offices of Alan I. Kaplan in Los Angeles.