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Medical Malpractice and Professional Liability

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Lancet Staff Report

Economic stress has placed increased pressure on medical practitioners and insurers alike. No longer part of the market scene is the long term professional liability policy and rates on short term policies have risen dramatically. In addition to cancellations, physicians who have been considered good risks in the past are finding substantial premium increases. Indemnity payments that were around $100,000 in the early 1900’s are now over $200,000. The National Practitioner Data Bank (NPDB) indicates that claims paid on behalf of practitioners have risen from over $150,000 to nearly $250,000. The percentage for claims over $1,000,000 has nearly doubled. Since more patients are seeking out-patient services, physicians providing in office services have seen a rise in incident exposure. Leading these cases are mis-diagnoses for breast cancer and cardiac issues. In-office procedures, or the lack thereof, are often identified as the basis for such exposure.

All too often doctors must face the dilemma of practicing defensive medicine or try to lower healthcare costs. Over utilization creeps in while doctors would rather trust their own clinical judgment. Therefore, physicians will practice defensive medicine in order to reduce their chances of facing a medical malpractice lawsuit. Dr. Richard Anderson, an oncologist, states, “Physicians are between a rock and a hard place…the legal system is set up to encourage defensive medicine. It drives the standard of care. The message is that if you miss something, you’ll get sued.” Defensive medicine requires that doctors order tests or procedures to reduce exposure to malpractice liability. The most pervasive form of defensive medicine is usually practiced in the emergency room. Many ER physicians will test extensively in order not to miss a diagnosis of heart attack, stroke, or other fatal illness. These physicians walk a line between being cautious and overly aggressive. While most doctors win in lawsuits, courts can be unpredictable and the ordeal can be devastating to the healthcare professional.

There is some good news on the horizon. An Aon study finds that insurance claims against doctors and other medical professionals have stabilized. The study found that the overall frequency of medical malpractice claims has not increased for the second straight year.

The Claims Journal reports that medical malpractice insurers in Florida earned an average return on surplus of 6.6%, the sixth straight year of profits. These profits were less than in previous years, but the trend is on the positive side. The report showed that Florida’s loss ratios were competitive with other states. In net loss, Florida ranks lower than New York, Massachusetts, Pennsylvania, and New Jersey. The Florida Insurance Commissioner reports that that the marketplace continues to be strong and competitive relative to other large states. This is encouraging for Florida doctors and hospitals.

In summary, the fear of doctors being sued won’t be relieved until doctors’ risk management officers insist that better communication and documentation are imposed. Brian Kern, an attorney and professional agent states that “good documentation makes it easier to defend in court and often discourages attorneys from bring suit.”

References Aon Physician Alliance, 2006.
Claims Journal, 2010. Florida Medical Malpractice Insurance Market Found in Good Health.
Crane, Mark, 2009. Must you still practice defensive medicine to avert a malpractice lawsuit?