The best of times or the worst of times? A tale of two surveys

Apprehension over professional liability litigation and discontent with related liability insurance availability continues to negatively affect the practice patterns of obstetric and gynecological providers nationwide, leading to widespread defensive medical practices, according to newly released data from the 2015 American College of Obstetricians and Gynecologists (ACOG) Survey on Professional Liability.¹

Paradoxically, the 2015 results of the professional liability insurance industry’s trusted Medical Liability Monitor’s Annual Rate Survey reported an almost decade-long decline in the frequency of medical malpractice actions being filed nationwide and more than 8 years of medical malpractice premium rate decreases nationwide with only the slightest increase (0.3%) in 2015. Ob/gyns saw their average rate marginally increase for the first time in many years by a meager 0.5 percent. Furthermore, the medical professional liability insurance market is projected to be flat with continued rate declines for a least the next 3 to 4 years.²

Why do these 2 surveys, from 2 well-respected sources, report such seemingly inconsistent results? A closer look at the data provides some answers.

The sued ob/gyn: a professional liability profile

Designed to study the effects of professional liability on ob/gyns, the 2015 ACOG survey questioned providers on their claims experiences and the effects of litigation fears and liability insurance costs on their practice patterns. A review of the survey data results in the following picture of a typical respondent. (The percentage of respondents from the survey that match the typical profile appears in parentheses.)

Our provider is a 51-year-old woman (56.1%) rendering both obstetric and gynecologic care (71.8%) in a group practice setting (42.7%). On average, she does 25.7 total procedures per month including 8.3 vaginal deliveries, 3.5 cesarean deliveries, 2.3 surgical assists and 2.2 hysterectomies.

When she was 36 years old, our provider was sued for medical malpractice for the first time (73.6%). The case involved the delivery of a neurologically impaired infant (27.4%) delivered by cesarean section (40.5%). A primary factor in the allegations of negligence involved electronic fetal monitoring. (22.1%). This case was dropped by the plaintiff (33.5%) with no payment made (47.8%).

The second time she was sued (average number of claims =2.59), the case involved a surgical complication (42.0%) during a hysterectomy (27.0%), which resulted in a major injury (27.9%). This case was settled (35.9%) with an indemnity payment of $424,388 to the plaintiff.

Due to the risk/fear of professional liability claims or litigation, our provider has changed her practice patterns (49.7%) and sees few, if any, high-risk obstetric patients (23.8%) and no longer performs or offers VBACs (13.4%).¹

In addition to changes made by the illustrative respondent above, more than one-third of ob/gyns (39.8%) have made changes to their practices due to the affordability and/or availability medical professional liability insurance, the survey found.¹

Malpractice carrier economic trends

In distinct contrast, Medical Liability Monitor’s 2015 Rate Survey found that the frequency of malpractice claims being filed are at “historic lows.” These low levels are projected to remain “very stable” and are allowing insurance carriers to “release” reserved funds set aside to pay potential claims. The release of these funds essentially creates profits for the carriers, propping up their financial outlook.²

The survey also reports that healthcare reforms and business trends in the US health system have resulted in fewer private-practice physicians, who continue to transition to employment by health systems and large practice groups, thereby decreasing the customer base for medical liability insurers. In addition, these practice groups are increasingly moving to captive insurance or risk retention groups, “thereby removing even more potential insureds from the medical professional liability (MPL) market and threatening [insurance carrier] market share.”²

At the same time, due to the high profits to be made from underwriting malpractice coverage, the number of insurance companies that serve hospitals, health systems, physicians, and surgeons has increased, which means that more companies are chasing a smaller amount of business.

Therefore, while rates were up slightly in 2015, powerful downward pressures on medical liability premium rates are projected to continue for the next 3-4 years.²

Projected loss rates for obstetric claims occurring in 2016 have been estimated at $172 per birth, down from projections in 2013 of $193 per birth.³

Perception trumps trends

It’s been said that what you see depends a great deal on where you are standing. If you are standing in the shoes of our prototypical ob/gyn, your perception is likely framed more by past experience or the experience of your peers than by current malpractice insurance industry trends. Fifty-six percent of the 2015 ACOG survey respondents were age 51 or older. These providers have been practicing in an era that has seen at least one well-publicized malpractice insurance crisis in the early 2000s, a wave of subsequent tort-reform, and the rise of the patient safety movement, all of which created heighten awareness of medical malpractice issues. The often-cited 2011 New England Journal of Medicine study by Jena et al, “Malpractice Risk According to Physician Specialty,” reported that by age 45, 74.1% of ob/gyns have been subjected to a malpractice claim and 30% faced an indemnity payment. By age of 65, a whopping 98.4% of ob/gyns had been subject to a claim and 71.3% faced an indemnity payment.⁴

Since the 1980s, medical malpractice researchers have known that the majority of physicians named in malpractices cases report suffering from negative physical or emotional responses, regardless of the outcome of the case.⁵ Now recognized as “medical malpractice stress syndrome” (MMSS), if left untreated, experts say it can severely affect some providers.⁶ It is reasonable to presume that MMSS is common among ob/gyns.

Another startling statistic from the ACOG survey is that around age 48, or what is considered mid-career for many doctors, between 4% and 5% of ob/gyns simply stop practicing obstetrics altogether, which is surprising when an estimated one-third of ob/gyns are already over age 55.⁷ The outlook becomes even more disheartening when coupled with estimates that the United States will experience a 40% deficit in the number of ob/gyn surgeons needed to keep up with patient demands over the next 14 years.⁸ The situation is compounded by the results of yet a third survey, conducted in 2014 by Physicians Foundation, which found that many physicians are accelerating their retirement plans (39%), looking to cut their work hours (18%), seeking non-clinical employment (10%), or simply retiring (9%).⁹

Therefore, regardless of what professional liability carriers are reporting, ob/gyns are still feeling tremendous pressures.

The 2015 ACOG study confirms, once again, what has been known for many years and demonstrated by several studies-namely, that concerns and perceptions about medical liability and worries about the high cost of malpractice insurance lead to the practice of defensive medicine and decreased women’s healthcare services, particularly for pregnant women.¹⁰

References

Carpentieri A, Lumalcuri J, Shaw J, Joseph Jr G. Overview of the 2015 American Congress of Obstetricians and Gynecologists’ survey on professional liability.

Greve P, Forray S. A Chain Reaction. The medical professional liability insurance industry is being transformed by the transformation of the healthcare delivery system.

Aon. Health care systems continue to address quality improvement, cyber risk in stable medical malpractice environment. http://aon.mediaroom.com/news-releases?item=137321. Physician employment and legislative trends top issues for hospital risk managers, according to annual Aon/ASHRM report. http://aon.mediaroom.com/2012-10-17-Physician-employment-and-legislative-trends-top-issues-for-hospital-risk-managers-according-to-annual-Aon-ASHRM-report.

Jena A, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629-636.

Charles, SC, Pyskoty CE, Nelson A. Physicians on trial-self-reported reactions to malpractice trials. West J Med. 1988;148(3):358-60.

American Medical Association. Litigation stress: being sued is personal as well as professional. http://www.amednews.com/article/20091102/profession/311029974/4/. Accessed April 4, 2016.

 Jennings J. The future of the ob-gyn workforce. https://acogpresident.org/?p=1225. Accessed April 6, 2016.

 Satiani B, Williams T, Landon M, Ellison C and Gabbe S. A critical deficit of OBGYN surgeons in the US by 2030. Surg Sci. 2011;2(2):95-101.

The Physicians Foundation. 2014 Survey of America’s physicians: practice patterns and perspectives. http://www.physiciansfoundation.org/healthcare-research/2014-survey-of-americas-physicians-practice-patterns-and-perspectives/. Accessed April 6, 2016.

Renkema E, Broekhuis M, Ahaus K. Conditions that influence the impact of malpractice litigation risk on physicians’ behavior regarding patient safety. BMC Health Services Research. 2014;14:38.