New research published in the New England Journal of Medicine on March 28, “Changes in Practice among Physicians with Malpractice Claims,” looks at physicians with poor malpractice liability records. Do these physicians continue to practice? If so, where?  And do they pose safety risks to patients?  In this Q&A, two of the study’s co-authors, Professors David Studdert and Michelle Mello, discuss their findings.

What was the spark for this research? How did it come about?

Three years ago we published a study that described characteristics of physicians who experienced multiple malpractice claims. One of our results was that claims were very concentrated in the physician workforce: a relatively small group of “frequent flyers” [physicians who had multiple malpractice claims] accounted for a disproportionately large share of all lawsuits.  As we went around presenting our results, people were particularly intrigued by this finding and kept asking us interesting questions we couldn’t answer.  How can these frequent flyers still be in practice?  Where do they practice?  Who would hire them?  And why would a professional liability insurer agree to cover them?  We started looking around for data that would allow us to provide answers, and eventually found some.

What are the key findings from this study?

The study reinforces our earlier finding about the concentration of malpractice claims: we found that 2% of physicians accounted for about 40% of paid malpractice claims over a 13-year period. On the core study question of what happens to these practitioners, we found that they were no more likely than physicians who did not experience claims to pick up and relocate for a fresh start elsewhere; however, they were more likely to cease practice and to shift to smaller practice groups or to solo practice.

Why were you interested in how much physicians relocated?

The conventional wisdom is that physicians who accumulate troubling medico-legal track records tend to move to other places where patients and colleagues don’t know their reputation.  Also, because most forms of legal oversight of health practitioners are at the state level, moving to a new state can allow physicians to start with a clean slate when they try to get licensed or credentialed at hospitals—or at least it used to offer this benefit.

In the late 1980s, there was such deep concern about this kind of behavior, and the threat it posed to the public, that Congress enacted a set of laws aimed at stopping it.  The centerpiece was an information repository called the National Practitioner Data Bank.  When a malpractice claims is paid on behalf of a health practitioner, or the practitioner is subjected to certain forms of disciplinary action, this must be reported to the Data Bank.  Employers, such as hospitals, are then required to query the Data Bank to check on these histories for any practitioner to whom they grant hospital privileges or employ.

Given that backdrop, finding that frequent flyers were not more likely than their peers to move was a welcome result.  Our study was not designed to measure whether this was because of the federal scheme, but the enhanced oversight probably plays a role.  It’s clearly harder for physicians with bad records to escape their past than it once was.

Is it a good thing that physicians with multiple claims stop seeing patients?

It may well be.  Several features of our study point in that direction.  All of the claims we studied involved payments to an injured patient.  Sometimes such payments occur in the absence of fault or error on the provider’s part, but when physicians repeatedly incur paid claims, concerns deepen about the quality of care they are delivering.   And their claims experience can’t be explained away by the fact that they practice in high-risk specialties, like neurosurgery, or in litigation-prone places, like New York, because our analysis adjusts for those kinds of alternative explanations.  So the frequent flyers we focused on are true outliers.

There is another reason to pause, however, before celebrating the finding regarding practice cessation.  Although physicians who accumulate claims are more likely than their peers to exit practice, the fact remains that the vast majority of them don’t.  Over 90% of the physicians who racked up five or more paid claims in our study kept on practicing.  That is concerning.

What is the significance of the results showing higher risks of shifts to solo or small group practice for these physicians?

There’s a patient safety concern lurking here too. Compared to practicing in large group practices or hospitals, physicians in small or solo practices are subject to less oversight from administrators and peers, and they often have more difficulty getting advice from colleagues.  So if there are problems with the quality of care they are delivering, it may be more difficult to detect and deal with those problems.  Solo practice is sort of the last place we want practitioners with quality problems to be working.

What’s the most important message for policymakers here? 

Physicians often curse malpractice litigation for being random.  While it’s true that not all medical malpractice claims signal poor-quality care, they are far from random.  Repeated claims against a practitioner, in particular, are an important signal of patient safety risk. Regulators and the companies that provide physicians with liability insurance should be paying closer attention to this signal.  We’re finding that the more we learn about these practitioners, the clearer that imperative becomes.

David Studdert and Michelle Mello are experts in the fields of health law and empirical legal research.  Both are Professors of Law at Stanford Law School and Professors of Medicine in the Stanford University School of Medicine.