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What are the top 10 reasons for surgical malpractice claims?

This is a study based on paid, surgery-related malpractice claims from September 1999 through July 2011 derived from the National Practitioner Data Bank.  During this 12-year period, there were nearly 20,000 paid malpractice claims related to surgery.  Here is the ranked list based on the reason for the malpractice claim.

  1. Improper performance (most frequently cited reason)
  2. Improper technique
  3. Failure to recognize a complication
  4. Retained foreign body
  5. Improper management
  6. Unnecessary procedure
  7. Wrong body part
  8. Failure to obtain consent/lack of informed consent
  9. Failure to perform procedure
  10. Delay in performance

Source: Jiam, N.T.-L., Cooper, M.A., and others.  Surgical malpractice claims in the United States.  Journal of Healthcare Risk Management;33(4):29-34, Q2, 2014.  Click here for access to publisher’s website: http://onlinelibrary.wiley.com/doi/10.1002/jhrm.21140/abstract  Posted by AHA Resource Center (312) 422-2003, rc@aha.org

Retained Surgical Sponges: Incidence and Costs

Surgical sponges left in the body (most often in the abdomen) after surgery are a patient safety issue with financial repercussions:  payment penalties, malpractice costs, and damage to the provider’s reputation.

The exact incidence of retained sponges or other surgical items is not known, but two key studies cite a rate of 1 in 5500-7000 cases, with sponges the most frequently retained item.

The number of malpractice cases and average indemnity costs for retained foreign objects are cited in the article, based on data from the Risk Management Foundation of the Harvard Medical Institutions and the Physician Insurance Association of America Data Sharing Project.

Sponge counting practice protocols and automated sponge counting technology are available to prevent the problem of retained sponges, but the issue persists.

Source: Sloane T. The high cost of inaction: retained surgical sponges are draining hospital finances and harming reputations. Becker’s Clinical Quality and Infection Control, Aug. 12, 2013. http://www.beckershospitalreview.com/quality/the-high-cost-of-inaction-retained-surgical-sponges-are-draining-hospital-finances-and-harming-reputations.html

Related resources:

Beyond the count: preventing the retention of foreign objects. Pennsylvania Patient Safety Advisory, vol 6, no. 2, June 2009, pp39-45. http://patientsafetyauthority.org/ADVISORIES/AdvisoryLibrary/2009/Jun6%282%29/Pages/39.aspx

Berger PS and Gordon S. Objects retained during surgery: human diligence meets systems solutions. Patient Safety and Quality Healthcare, Sept/Oct 2008. http://www.psqh.com/sepoct08/objects.html

Sawyer M and others. Health care protocol: Perioperative protocol. 4th ed. Institute for Clinical Systems Improvement. Perioperative Protocol. Nov 2012. https://www.icsi.org/_asset/0c2xkr/Periop.pdf

Posted by AHA Resource Center (312) 422-2003, rc@aha.org

Johns Hopkins researchers estimate rate of surgical ‘never events’ as 4,044 per year in US based on malpractice claims

Based on an analysis of malpractice claims data from the National Practitioner Data Bank for the period 1990 to 2010, researchers from Johns Hopkins have estimated that 4,044 surgical never events occur in the US per year.  The study found that actual malpractice payments totaled $1.3 billion over the 20-year period studied.  They calculated the rate of patients who died, those who were permanently injured, and those who were temporarily injured as well.

Source: Johns Hopkins malpractice study: surgical ‘never events’ occur at least 4,000 times per year.  Press Release, Dec. 19, 2012.  Click here for full text: http://www.hopkinsmedicine.org/news/media/releases/johns_hopkins_malpractice_study_surgical_never_events_occur_at_least_4000_times_per_year .  The study referred to is:  Mehtsun, W.T., and others.  Surgical never events in the United States.  Surgery;153(4):465-472, Apr. 2013.  Click here to purchase the article as published in the journal: http://www.surgjournal.com/article/S0039-6060%2812%2900623-X/abstract ; or, click here for a free “in press” version of the article: http://content.hcpro.com/pdf/content/287732.pdf  Posted by AHA Resource Center (312) 422-2050, rc@aha.org

Catastrophic Medical Malpractice Payouts in the U.S.

An analysis of medical malpractice payouts of $1 million or more over a seven year period was recently published. It found that these catastrophic medical malpractice awards accounted for nearly 8% of all paid malpractice claims, and were most often associated with infants; quadriplegia, brain damage, or lifelong care; and anesthesia.

Annual catastrophic payouts averaged $1.4 billion, but this figure represented only 0.05% of total health expenditures in the U.S.  The study was based on the National Practitioner Data Bank that includes details on malpractice payouts on behalf of physicians or other individual providers; malpractice claims against hospitals or other institutions are not covered by the Data Bank. Consequently, total national payouts may be underestimated by about 20%, according to the researchers.

The researchers conclude that defensive medicine rather than ‘frivolous’ malpractice awards may be the more costly concern. According to Marty Makary, one of the Johns Hopkins researchers, “It is not the payouts that are bankrupting the system — it’s the fear of them.” He estimates defensive medicine costs $60 billion annually for too many tests and procedures.


Bixenstine PJ and others. Catastrophic medical malpractice payouts in the United States. Journal for Healthcare Quality, published first online, Mar. 29, 2013, at http://onlinelibrary.wiley.com/doi/10.1111/jhq.12011/abstract

‘Catastrophic’ malpractice payouts add little to health care’s rising costs. Johns Hopkins Medicine news release, May 1, 2013. http://www.hopkinsmedicine.org/news/media/releases/catastrophic_malpractice_payouts_add_little_to_health_cares_rising_costs

Posted by AHA Resource Center (312) 422-2050, rc@aha.org

Risky business: physician malpractice risk by specialty

Using physician-level data on malpractice claims from a large professional liability insurer, authors of a recent article in the New England Journal of Medicine explored physicians’ career malpractice risk according to specialty. They found that 7.4% of all physicians had a malpractice claim, with 1.6% having a claim leading to a payment. Specialties with the highest percentage of claims each year were neurosurgery (19.1%), thoracic–cardiovascular surgery (18.9%), and general surgery (15.3%).  

Source: Jena, A. B., and others. Malpractice risk according to physician specialty. New England Journal of Medicine. 365(7):629-636, Aug. 18, 2011. http://www.nejm.org/doi/full/10.1056/NEJMsa1012370?query=TOC#t=article

Posted by AHA Resource Center, (312) 422-2050, rc@aha.org.

Physicians’ disciplinary actions decline

Public Citizen (www.citizen.org), a watchdog organization, has released its annual analysis of serious disciplinary actions taken by state medical boards from data released by the Federation of State Medical Boards (www.fsmb.org).   Serious actions include revocation of license, surrender of license, suspension, and probation or restriction of practice and are measured per 1,000 physicians.  The annual rate of disciplinary actions peaked in 2004 at 3.72 actions per 1,000 physicians; the rate for 2010 was 2.97 per 1,000.  

The report includes an analysis of the ten best and worst states taking serious disciplinary actions, counts of physicians and disciplinary actions by state, and trend information for each state back to 2003.

Source: Wolfe, Sidney M., and others.  Public Citizen’s Health Research Group Ranking of the Rate of State Medical Boards’ Serious Disciplinary Actions, 2008-2010.  Washington, DC: Public Citizen, May 12, 2011.     http://www.citizen.org/documents/1949.pdf

Disruptive behavior: how much does it cost?

An article in the current issue of the Journal of Healthcare Risk Management explores the relationship between disruptive physician behavior, outcomes of care, and, ultimately, the cost to the organization. The author points out that disruptive behavior can negatively affect interprofessional relationships, communication, information transfer, and the quality of patient care. Resulting costs to the organization may include those that accrue from recruitment and retention efforts, adverse events, malpractice, compliance issues, inefficiences, and loss of market share. Included in the article are recommendations for 10 steps that hospitals should consider in addressing disruptive behaviors.

The Journal is published by the American Society for Healthcare Risk Management of the American Hospital Association.

Source: Rosenstein, A. H. Measuring and managing the economic impact of disruptive behaviors in the hospital. Journal of Healthcare Risk Management. 30(2):20-26, 2010.

Medical tourism: fly-by-night trend or here to stay?

Estimates of the annual number of Americans traveling abroad for health care have ranged from 60,000 to 750,000, with Deloitte projecting as many as 1.6 million by 2012. What are some of the drivers behind this growth?

  • Lower costs. Patients who are uninsured, underinsured, or seeking medical treatments not usually covered by insurance  may search for more affordable health care than what they would pay in out-of-pocket expenses in the U.S.
  • Access to advanced technology or unavailable services. In some cases, patients may obtain access to services or treatments that have not been approved or are not readily available in the U.S.
  • Greater sophistication in the medical travel industry. Foreign providers and medical travel brokers have capitalized on the opportunity offered by the Internet to market their services worldwide. Organizations are available to help the medical traveler plan his/her experience from start to finish.
  • Health plan incentives. A few insurers have developed pilot projects that provide coverage for travel and medical arrangements with foreign providers.

What are some of the concerns?

  • Lack of outcomes or quality data. The absence of comparative data on outcomes or other quality measures limit the extend to which valid evaluations can be made regarding the quality of care of foreign providers.
  • Lack of care coordination. Ensuring that adequate patient information is made available both to the patient’s home physician and the foreign provider and that pre- and post-care planning are fully addressed are significant challenges for establishing continuity of care.
  • Uncertainty regarding medical liability. There may be little or no legal recourse for patients who experience complications as a result of their medical treatment abroad. Additionally, home physicians may be reluctant to perform follow-up treatment for these patients out of concerns for their own liability. 

Sources consulted:

Caffarini, K. Guidelines target safety of medical tourists.  American Medical News. 51(25):19-20, July 7, 2008.

Crooks, V. A., and others. What is known about the patient’s experience of medical tourism? A scoping review. BMC Health Services Research. (10):266, Sept. 8, 2010.

Ehrbeck, T., Guevara, G., and Mango, P. D. Mapping the market for medical travel. The McKinsey Quarterly.  May 2008.

Keckley, P. H., and Underwood, H. R. Medical Tourism: Update and Implications.  Deloitte Center for Health Solutions, 2009.

Underwood, H. R., and Makadon, H. J. Medical tourism: game-changing innovation or passing fad? Healthcare Financial Management. 64(9):112-4, 116, 118, Sept. 2010.

State legislative activity: medical liability and malpractice

The National Conference of State Legislatures tracks the status of state legislation related to medical liability and malpractice issues. The legislation for 2010 includes bills that relate to the following issues:

  • Damage award limits or caps
  • Statute of limitation
  • Joint and several liability
  • Limits on attorney fees
  • Patient compensation or injury fund
  • Pre-trial alternative dispute resolution and screening panels
  • Affidavit or certificate of merit
  • Expert witness standards
  • Medical or peer review panels
  • Insurance premiums

For a list by state, see http://www.ncsl.org/?tabid=21348.

Medical liability claim frequency

A new report from the American Medical Association provides a statistical snapshot of how many physicians have been sued for malpractice. Based on the AMA’s 2007-2008 Physician Practice Information survey, 42% of physicians have had at least one  medical liability claim filed against them during their career. For general surgeons, nearly 70% had been sued at least once.

The AMA reports that there were 95 medical liability claims filed per 100 physicians.  OB/GYN physicians edged out general surgeons for the highest liability claim rate among specialists  — 215 per 100 physicians — while pediatricians had the lowest rate of 36 per 100.

The AMA also analyzed claim frequency by physician age, gender, and practice setting.