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1% of Docs Commit 32% of Malpractice

According to a study published in the January 28, 2016 edition of the New England Journal of Medicine, one percent of the doctors are responsible for 32% of the medical malpractice claims paid out in the United States. Researchers based this finding on a review of 66,426 malpractice claims paid between 2005 and 2014. Researchers also found that doctors with two claims paid were much more likely pay out on additional claims than their colleagues with one or less claims paid. Studdert et. al., Prevalence and Characteristics of Physicians Prone to Malpractice Claims, N Eng J Med 374: 354-362 Jan. 28, 2016.

These findings raise an interesting question: How can patients find out whether their doctor has a history of committing malpractice? In Minnesota, patients have very little access to information about the safety of their doctors. Malpractice payments made on behalf of doctors have to be reported to the National Practitioners Data Bank and Minnesota Board of Medical Practice, but neither body allows the public to access this information. Many state licensing boards allow their citizens to access information about malpractice payments, but Minnesota has chosen not to allow citizens access.

Patients are also denied access to information about malpractice payments made before a lawsuit is filed. Doctors and their insurers demand that patients remain silent about the settlement and promise grave legal consequences if the patient discusses the case. Patients harmed by malpractice therefore cannot warn citizens about doctors who have committed malpractice.

When malpractice claims are filed in court, a public record of the lawsuit is generated. This allows patients to look up their doctors on Minnesota's website for court cases and see if their doctor has been sued for malpractice. Keep in mind, however, that the lawsuit may only name the doctor's clinic as a defendant so you should do a search for the clinic as well when searching on the website. The website will reveal the status of the case and, if the case is resolved, whether the case was dismissed, settled, or resulted in a jury verdict. The result of the jury verdict will typically not be available. If the verdict was against the doctor or the clinic, the case will often be resolved by settlement after the verdict with the doctor and the liability insurer demanding that the injured patient not reveal the terms of the settlement or the facts of the case. Regardless of the disposition of a court case, an ambitious patient can go to the courthouse where the lawsuit was filed and gather more details about the malpractice allegations by reviewing the court file, but the time and expense of this field trip can be burdensome.

Patients attempting to learn about their doctors can also visit the website of the Minnesota Board of Medical Practice to find out whether their doctor has been disciplined by the Board. This information is public, but do not expect to find many cases of discipline. Minnesota's licensing board has a track record of not disciplining its physicians, and in 2010 finished dead last among all state boards of medical practice in disciplining its physicians.

Minnesota also protects doctors who cannot obtain malpractice insurance in the private market because they are too high risk. Doctors typically cannot practice in a hospital without malpractice insurance, but instead of shutting out these doctors from patient care and promoting patient safety, the legislatively created Minnesota Joint Underwriting Association will provide coverage so that high risk doctors can continue to practice. Worse, the public does not have access to the name of physicians insured through this entity.

So what is a patient to do? The patient can ask the doctor about any history of medical malpractice payments and whether the doctor has been insured by the Minnesota Joint Underwriting Association, but such questions will do little to promote the trust that should be the foundation of the doctor-patient relationship. Even if a patient were bold enough to ask these questions, this will not work in a hospital setting where the patient oftentimes receives care from a number of physicians they never meet or see.

As one of my former colleagues noted to a reporter a few years ago, in Minnesota one can find out more about their siding contractor than they can about the surgeon for their 10 year-old daughter. Is this really how we want our healthcare system to be in Minnesota?

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