Practitioner Liability

"Whatever lies behind these shifts, it is problematic. From a patient safety standpoint, this is the study’s most troubling finding." — David Studdert, LLB, ScD, MPH


Stanford researchers analyzed more than a decade’s worth of data about nearly half a million physicians and found that those who were sued repeatedly were no more likely to move their clinical practices to new states or regions than colleagues who had no legal claims against them.

But physicians who accrued multiple claims were more likely to cease practice, shift into smaller practice settings, or go solo.

Stanford Health Policy’s David Studdert, LLB, ScD, MPH, and Michelle Mello, PhD, JD—both professors of medicine and of law—published their findings in the Mar. 28, 2019 issue of The New England Journal of Medicine.

The researchers studied 480,894 physicians and nearly 69,000 malpractice claims. They found that claims were grossly maldistributed, with nearly 90% of the physicians experiencing no claims over a 10-year period, 9% experiencing one claim, and 2% experiencing multiple claims. The multi-claim physicians accounted for nearly 40% of all claims paid over a decade.

“There is an emerging awareness that a small group of ‘frequent flyers’ accounts for an impressively large share of all malpractice lawsuits,” says Studdert. “This study confirms that and, for the first time, begins to shed light on the professional trajectories of these practitioners.”

Geographic relocation was a key focus of the study. The researchers used data from the National Practitioner Data Bank, which was established by Congress in the early 1990s. The data bank was created partly in response to widespread concerns that patients were endangered by practitioners who accumulated troubling track records of malpractice claims and disciplinary problems, then moved to another state for a fresh start.

“Many of the laws and institutions that govern health professionals are at the state level,” says Studdert. “It’s possible to take advantage of that fragmentation to avoid oversight, and this is what the data bank was set up to stop.”

When a malpractice claim is paid on behalf of a health practitioner, or the practitioner is subjected to certain forms of disciplinary action, the information must be reported to the data bank. And before a hospital may credential a physician, it is required to query the data bank to examine the physician’s history. Medical groups, health plans, and professional societies are encouraged to make such queries as well, but they are not required to do so.

“Contrary to popular wisdom, we do not see evidence of unusual geographic movement among frequent fliers,” says Mello. “They are no more likely than other physicians to relocate.”

There is an emerging awareness that a small group of ‘frequent flyers’ accounts for an impressively large share of all malpractice lawsuits

While this finding may be interpreted as evidence that the data bank is doing its job, the study was not designed to test it, and the authors were hesitant to draw that conclusion.

But not all of the study’s findings were so reassuring. As physicians accrued malpractice claims, their likelihood of shifting into small medical groups or solo practice increased sharply. For example, the study found that physicians who had accrued two to four claims were 50% to 60% more likely to enter solo practice than physicians with no claims, and physicians with five or more claims were nearly 2.5 times more likely to enter solo practice.

The study goes on to consider why these shifts to smaller practice occur, suggesting that “it may become necessary if a hospital or practice group severs its ties with a claim-prone physician or imposes burdensome remedial actions as a condition of recredentialing. Physicians may also seek a new practice setting if they perceive that their reputation among their colleagues has become tarnished.”

“Whatever lies behind these shifts,” says Studdert, “it is problematic. From a patient safety standpoint, this is the study’s most troubling finding.”

The study reviews aspects of small group and solo practice settings that are likely to amplify the risks claim-prone physicians pose for patients. “In small and solo practice there tends to be less oversight by administrators and peers,” Studdert says. It is also hard for physicians in these settings to adopt infrastructure improvements, implement processes to improve care, and access advice and information from peers and support staff.”

Although the finding that frequent fliers were significantly more likely to cease practice appeared to be reassuring, the authors sounded a cautionary note here, too.

“You would hope and expect that many of these practitioners will be de-credentialed and perhaps leave medicine, and those outcomes are indeed more likely,” says Mello. “But the fact is that the vast majority of physicians who have had multiple malpractice claims paid against them continue to deliver care and treat about as many patients as their colleagues do.”

Liability insurers may be in the best position to monitor multiple-claims physicians, according to Studdert, but may not be doing so.

“Someone is continuing to provide insurance for these physicians despite their poor liability records,” he says. “It’s not clear how much those liability insurers know about these physicians’ histories, or what if anything they are doing to address the risk.”

The researchers formed the study cohort by linking data on physicians who billed Medicare between 2008 and 2015 with malpractice payment reports in the data bank over the same period.

Other co-authors of the study included Matthew J. Spittal from the Melbourne School of Population and Global Health, University of Melbourne; Yifan Zhang from Stanford’s Center for Health Policy; and Derek S. Wilkinson and Harnam Singh from the Health Resources and Services Administration in the U.S. Department of Health and Human Services.