Fewer malpractice suits are resulting in paid claims against physicians while malpractice insurance premiums have remained stable or declined over the last 12 years, according to an analysis published Oct. 30 in JAMA.

Since 2002, the rate of paid malpractice claims against doctors of medicine has decreased by an estimated 6% annually; for doctors of osteopathy, the rate has declined about 5% annually, Michelle M. Mello of Stanford (Calif.) University and her colleagues reported (JAMA 2014 Oct. 30 [ doi:10.1001/jama.2014.10705 ]).

Dr. Mello and her colleagues analyzed paid legal claims against MDs and DOs between 1994 and 2013 from the National Practitioner Data Bank and the American Medical Association’s Physician Masterfile. They also evaluated premium data from the Medical Liability Monitor’s Annual Rate Survey .

The rate of paid malpractice claims against MDs fell from 18.6 to 9.9 paid claims per 1,000 physicians between 2002 and 2013, they found. For DOs, rates dropped from about 19 in 2002 to about 12.2 paid claims per 1,000 physicians in 2013.

The median compensation paid to plaintiffs rose by 63% between 1994 and 2007, from $133,799 to $218,400, in adjusted 2013 dollars. However, since 2007, that number has declined, reaching $195,000 in 2013. Only 3.4% of payments made during the 20-year period resulted from jury verdicts; the others stemmed from settlements.

For the premiums review, Dr. Mello and colleagues analyzed insurance data from 2004 to 2013 from five geographical areas: Los Angeles, Orange, Kern, and Ventura counties in California; Nassau and Suffolk counties in New York; Cook, Madison, St. Clair, and Will counties in Illinois; and the states of Tennessee and Colorado. The locations were selected based on geographic diversity and because each had an insurer with a dominant market share.

In California, Illinois, and Tennessee, internists and ob.gyns. saw a 36% decrease in premiums charged by each state’s largest medical malpractice insurer from 2004 to 2013. Premiums charged to general surgeons fell by 30% in these states. In Colorado, internists saw a 20% decrease in premiums over the same time period, but general surgeons saw an increase of 13% and ob.gyns. experienced an 11% rise. In New York, rates charged by the largest insurer rose by 12% for ob.gyns, 16% for internists, and 35% for general surgeons.

It remains unclear why the rate of paid claims has decreased and why premiums have remained fairly stable, Dr. Mello and colleagues said. While medical organizations like to point to tort reform, traditional reforms such as award caps do not address problems within the malpractice system’s core functions – compensating negligently injured patients and deterring substandard care, they added.

“The weight of evidence suggests that the system’s effectiveness as both a compensation and a deterrence mechanism is mediocre at best, and there is little to suggest it has improved over the past decade,” they wrote. “Thus, ‘stable but still dysfunctional’ might describe today’s liability environment.”

The authors offered alternatives to traditional tort reform, such as communication and resolution programs, mandatory presuit notification laws, and judge-directed negotiation.

In communication and resolution programs, clinicians and institutions openly discuss adverse outcomes with patients and proactively seek resolution, including offering an apology, and, if the standard of care was not met, compensation. Mandatory presuit notification refers to requiring plaintiffs to give defendants advance notice that they intend to sue. Judge-directed negotiation centers on court policies in which malpractice litigants meet early and often with judges to discuss settlement. In such negotiations, the court employs an attorney with clinical training to help judges understand clinical issues.

The authors conclude that action to improve the medical liability system is necessary while the legal climate is stable, and not after a crisis.

“During malpractice crises, interest in liability reform intensifies, but one lesson of the last 40 years is that an atmosphere of crisis is not conducive to thoughtful and enduring solutions,” study authors said. “Action now to reduce the amplitude of the next medical liability cycle is both prudent and feasible. Further testing of nontraditional reforms, followed by wider implementation of those that work, holds the most promise.”


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