Looming Malpractice

Waiting for claims resolution takes up more than 10 percent of the average medical career

The average physician can expect to spend nearly 11 percent of his or her career with an unresolved malpractice claim, according to a new study. Some specialists will spend nearly a third of their careers with open claims.

The length of time it takes to resolve a malpractice claim places stress on patients, physicians and the legal system, the researchers found, and  the time spent with open claims may be even more distressing for physicians than the financial costs of the claims.

“We believe that the time required to resolve malpractice claims may be a significant reason that physicians are so vocal about malpractice reform, and that any attempt at malpractice reform will need to take the speed with which cases are resolved into account,” said corresponding author Anupam Jena, assistant professor of health care policy at Harvard Medical School and general internist at Massachusetts General Hospital.


Using a database from a large national malpractice insurance agency, Jena, along with Seth Seabury, senior economist at the RAND Corporation, analyzed the amount of time physicians spend with open claims. Claims were broken down by the specialty of the practitioner, severity of injury and on whether malpractice was found. The results were reported Jan. 7 in Health Affairs.

Two factors contribute to the amount of time a given physician spends with pending claims: the likelihood of a claim in any given year, and the length of the legal process. The typical medical malpractice claim isn’t filed until almost two years after the incident occurs, and isn’t resolved until 43 months post-incident. When dealing with open claims, physicians spend up to 70 percent of that time with claims that never result in a payment.

Neurosurgeons, who on average will spend nearly 131 months—27 percent of their careers—with an open malpractice claim ranked highest among specialists in time spent with open claims. Psychiatrists spent the least amount of their careers with an open claim average of nearly 16 months, or just over three percent of their careers.

The study is part of a larger project to understand how malpractice works and to investigate possible improvements to the system. In a 2011 New England Journal of Medicine article, Jena and colleagues first published their findings about variation in malpractice risk among specialties.

The researchers recommend exploring policy strategies for speedier resolution, including tort reform and alternative dispute management tools that can expedite the process and help limit meritless claims.

Even cases that are dismissed before trial take a long time to resolve. In previous studies, the researchers found that dismissed cases take 18 months to two years, cases that are settled take two to three years, and cases that go to jury take approximately four years to adjudicate.

“That’s a very long time for a patient or a physician to have to wait for resolution,” Jena said.

The researchers noted that the stress of enduring numerous lengthy lawsuits may not only explain why malpractice reform is so staunchly advocated by physicians but may also lead to expensive defensive medicine, which contributes to high health care costs.

The best remedy would be to have a system in place where the judicial and health care systems could more easily screen out cases that don’t meet the legal or medical standards for malpractice, the researchers said. In cases where malpractice occurs, compensation should be fair and swift, and in cases where there is no merit to the claim, rapid dismissal of the case would prevent significant resources from being wasted.

“Our sense is that we are probably spending too long to resolve many of these cases and that lengthy time to resolution has many unanticipated costs to patients, physicians and the health care system as a whole,” said Seabury.

This study was funded by the RAND Institute for Civil Justice, the National Institute on Aging and the Roybal Center at the University of Southern California. Additional authors of the study include Amitabh Chandra, professor and director of health policy research at Harvard University’s Kennedy School of Government and Darius Lakdawalla, Quintiles Chair in Pharmaceutical and Regulatory Innovation at the University of Southern California.

Seth Seabury received support from the RAND Institute for Civil Justice and National Institute on Aging (NIA) Grant No. 7R01AG031544. Darius Lakdawalla received support from NIA Grant No. 7R01AG031544, NIA Grant No. 1RC4AG039036-01, and the NIA Roybal Center at the University of Southern California (5P30AG024968). Amitabh Chandra was supported by NIA Grant No. P01 AG19783-02.