A new study in the BMJ suggests that the more services a physician provides to his or her patients, the less likely the physician is to be sued for malpractice.  The study examined the use of resources by attending physicians in several Florida acute care hospitals during a ten-year period from 2000-2009, in relation to the number of malpractice claims brought against the physicians in the year following care.  Researchers found that physicians who billed higher than average hospital charges were sued less often than lower-billing physicians.

The study builds on evidence that most physicians in the United States report practicing “defensive medicine”, commonly understood to be “medical care provided to patients solely to reduce the threat of malpractice liability rather than to further diagnosis or treatment.”  Prior to this study, no research had been published on whether greater resource use by physicians is associated with reduced claims for malpractice.

The researchers focused on physicians from seven specialties, including obstetrics, which tends to have a higher rate of malpractice claims than other specialties.   The evidence clearly showed that a physician’s risk of being sued for malpractice was reduced among those who performed and billed for more services.  However, the authors noted that the data only show a correlation.  Further research is necessary to understand why higher spending is linked to a lower risk of malpractice claims.

Perhaps the greatest value from this study is that the results corroborate the belief that defensive medicine reduces the likelihood of claims for malpractice.  Interestingly, the authors note that the effectiveness of defensive medicine could be a reason why efforts to reduce physician spending have been difficult.

The full study is available online at:  http://www.bmj.com/content/351/bmj.h5516-0.

As a follow up to our most recent post on What You Need to Know About PA’s Child Protective Services Law, you should know that the Pennsylvania Superior Court (PA’s primary appellate court) recently held that a physician may be sued for malpractice for failing to report suspected child abuse, even though there is not an express right to sue a physician for failing to report such abuse under the PA Child Protective Services Law (the “Child Abuse Law”).

You likely know that the Child Abuse Law requires any licensed or certified health care practitioner to immediately report suspected child abuse to the Department of Human Services electronically or by phone when the individual has reasonable cause to suspect that a child is a victim of abuse.  23 Pa. C.S. § 6311(a).  A health care practitioner may have reasonable cause to suspect child abuse from contact with the child in the practitioner’s practice or from a specific disclosure to the health care practitioner by the child or an individual unrelated to the child.  23 Pa. C.S. § 6311(b).  If the health care practitioner willfully fails to report suspected child abuse, the practitioner commits a misdemeanor of the second degree.  If the abuse suffered by the child constitutes a first degree felony or more severe crime, the health care practitioner commits a third degree felony.  23 Pa. C.S. § 6319(a).

In K.H. v. Kumar, the PA Superior Court was presented with the sad case of an infant’s severe brain injury from child abuse that went repeatedly unreported by the infant’s physicians.  The trial court held that the physicians could not be sued for malpractice because the Child Abuse Law, which expressly creates a duty for physicians to report suspected child abuse and establishes criminal penalties for a failure to do so, does not expressly permit non-reporting physicians to be sued in civil court for malpractice.

However, upon review, a unanimous three-judge panel from the PA Superior Court overturned the lower court’s ruling and held that the Child Abuse Law does not prevent physicians from being sued for malpractice for their failure to report suspected child abuse.  The Court noted that the Child Abuse Law does not expressly prohibit suits for malpractice against non-reporting physicians, and emphasized that physicians have a duty of reasonable care to their patients as a result of the physician-patient relationship.  Whether a particular physician fails to meet that duty of care is a question for the jury, not the judge to decide.

Notably, the Court also held that the hospital that employed the physicians could be found negligent for failing to have appropriate policies and procedures in place for the retention and availability of patients’ prior radiological studies.  This is an important warning to medical practices and health care institutions, which should ensure that they have policies and procedures in place to give their physicians ready access to all patient records that could indicate prior physical abuse to a minor patient.

In the conclusion of its opinion, the Court quoted the Hippocratic Oath and its sentiments recognizing that treatment of a patient involves consideration of the patient’s family situation.  The Court emphasized that these sentiments are central to the intent of the sections of the Child Abuse Law requiring health care practitioners to report suspected child abuse.

The full-text of the eloquently written case is accessible at this link:  http://www.pacourts.us/assets/opinions/Superior/out/j-a08018-15o%20-%201023340425279130.pdf#search=%22k.h. kumar%22.

The Takeaway:  Any health care practitioner who has a reasonable suspicion that his or her minor patient has suffered child abuse should not hesitate to report the abuse immediately.  Willfully failing to report the abuse is a crime and can result in civil liability.  Health care institutions should also ensure that policies and procedures are in place to give physicians ready access to patient records that could indicate patterns of child abuse.

To report suspected child abuse in PA, go to www.compass.state.pa.us/cwis or call (800) 932-0313.

The results of a comprehensive study published this week in the New England Journal of Medicine (NEJM) confirms that physicians’ fears of being sued for malpractice are not irrational. According to the article, “Malpractice Risk According to Physician Specialty”, most physician will be sued for malpractice at least once in their careers. Interestingly, however, only about 22% of malpractice cases annually result in a settlement or other payout.

Low-risk specialists including psychiatrists, pediatricians, family practitioners, and dermatologists have a 75% chance on average of being sued during their careers but high risk surgery specialists — thoracic cardiovascular surgery, neurosurgery, general surgery, orthopaedic, and plastic surgery – face a 99% chance of being sued. However, the study, which also looked at the average size of payouts, suggests that the likelihood of being sued is not necessarily related to the size of payouts. For example, the average payout in pediatric cases was $520,923 but was only $344,811 in neurosurgery cases.

The threat of a malpractice lawsuit (as opposed to Medicare/payor overpayment liability which I contend is much more likely and not an insured risk!) is a perennial bogeyman for most physicians. The NEJM article is a must read for any physician who wants to see what’s really hiding under the bed — you might find that it’s really not so scary.

According to a statement by Governor Edward G. Rendell as reported by the PR Newsire, malpractice reform in Pennsylvania has been a dramatic success.  Governor Rendell noted that malpractice filings statewide declined by 41% between 2002 and 2008. The Governor also noted that over the past three years, the two largest commercial medical malpractice insurers have either decreased their base premiums or kept them flat each year in Pennsylvania. In light of the improved malpractice environment in the State, Governor Rendell intends to propose a phase-out of the Mcare program. The PR Newswire story can be viewed here.

According to a recent article in the Patriot News, Governor Rendell has outlined the costs associated with his plan to provide health insurance for Pennsylvania’s uninsured population.  The plan calls for increases in taxes on tobacco products and would tap into the MCARE fund to cover the health insurance costs.  However, according to Rendell, the plan would result in enough money to ultimately eliminate the MCARE premiums currently charged to physicians.  According to the article, Governor Rendell is seeking physician support of his plan, which, with minor modification, the Pennsylvania House of Representatives has already approved.  Rendell has already said that unless Pennsylvania legislators are able to work out a deal to expand the State’s uninsured health insurance program, he will not approve extension of the MCARE abatement program.  

Medtronic (and by default, all medical device manufacturers) scored a huge win on Wednesday when the U.S. Supreme Court held that medical device manufacturers cannot he held liable in tort actions for medical devices that have gone through FDA pre-market approval.  The case in question was brought by the estate of a man injured when a balloon catheter manufactured by Medtronic burst.  While the issue of preemption of tort liability under the federal Medical Device Amendments of 1976 have been the subject of debate in the federal courts, the Supreme Court’s action will likely end that debate for the time being.

Much to the chagrin of practicing Pennsylvania physicians, the issue of MCare premium subsidies became a political football earlier this month when Governor Ed Rendell said he would not approve the 2008 MCare subsidy until Pennsylvania lawmakers acted on his proposal to expand the state insurance program to uninsured adults.  The proposal calls for using a portion of the MCare surplus to pay for the expanded insurance benefits.  However, according to an article in the Philadelphia Inquirer, Governor Rendell is considering allowing physicians to delay paying their MCare premiums until the debate over the proposed program is resolved and the MCare subsidy legislation is officially extended.  This approach, according to the Governor, likely makes better sense than requiring the premiums to be paid and then later refunding them.  Stay tuned …  

You may recall from a July 2 posting on this blog that the Insurance Department was considering changing the required level of malpractice coverage Pennsylvania physicians must maintain (before MCARE coverage) from $500,000 to $750,000.  Pennsylvania doctors can breath a sigh of relief, at least for now.  According to a July 20, 2007 Press Release, the Department has decided against increasing malpractice coverage requirements for physicians in Pennsylvania.  Citing an actuarial report done by Pricewaterhouse Coopers, Deputy Insurance Commissioner Randy Rohrbaugh cited a lack of evidence that the market is ready to bear such an increase at the present time. 

If certain changes currently under consideration by the Pennsylvania Insurance Commissioner go into effect, Pennsylvania Physicians could end up paying a significantly larger malpractice insurance bill next year.  Specifically, the Insurance Department is considering changing the required level of coverage Pennsylvania physicians must maintain (before MCARE coverage) from $500,000 to $750,000.  According to a recent article in the Pittsburgh Post-Gazette, some physicians believe that the malpractice crisis in Pennsylvania is far from over and that such a change will only serve to reinvigorate the crisis. 

According to a report released on May 24, 2007 by the American Association for Justice (AAJ) and the Pennsylvania Trial Lawyers, the medical malpractice insurance industry has been price-gouging doctors through excessive premiums.  The study, based based on annual reports from the top 15 medical malpractice insurers as rated by A.M. Best, suggests that premiums continue to skyrocket even though actual and projected losses dropped by 48% between 2003 and 2006.  A copy of the full report can be found here.