Contributing Factors to Medical Malpractice Claims: Study Examines Difference Between No-Payment and Indemnity Claims

Nationwide, the cost of the average medical malpractice claim has increased dramatically, even as the frequency of claims against our insured clinicians has decreased. In November 2023, The Doctors Company released a study on diagnosis-related medical malpractice claims with an indemnity over $1 million. Now, to expand our understanding, we have conducted a new analysis.¹

Study Design

We began with the guiding question: Do contributing factors differ between malpractice claims with no payment and claims with indemnity payments?

The study included malpractice claims closed by The Doctors Company from the loss years of 2013 through 2023. It included a total of 11,122 malpractice claims, excluding dentists and oral surgeons. The top major allegations were surgical treatment (37 percent), medical treatment (24 percent), diagnosis related (17 percent), medication related (6 percent), anesthesia related (5 percent), and obstetrics related (4 percent). Almost a third of the malpractice claims (30.6 percent) concluded with an indemnity payment.

We compared the leading subcategory contributing factors in the no-payment claims to those in the indemnity claims. We conducted a chi-square analysis to discover any statistically significant differences between the two disposition types.

Results

Four subcategories of contributing factors showed statistically significant differences between their prevalence in no-payment vs. indemnity-paid claims. All were more prevalent in indemnity-paid claims:

• Patient assessment: Cognitive bias may play a role in medical malpractice claims grounded in patient assessment factors, such as failure to establish a differential diagnosis or failure to appreciate the patient’s signs and symptoms, leading to a premature discharge. These factors were present in the majority of settled claims.
• Selection and management of therapy: This factor includes the selection and management of the right procedure, surgery, therapy delivery method, or medication for the patient. Considering procedure selection, we noted several claims in which surgeons proceeded with complicated elective surgeries without medical clearance.
• Communication among providers: Issues around failure to read the medical record appeared in a higher percentage of indemnity-paid claims than no-payment claims. Further, we found that a higher percentage of settled claims in our study had contributing factors related to two emerging communication domains: texting and emailing, and portal issues.
• Insufficient / lack of documentation: Various documentation insufficiencies were observed more frequently in the studied indemnity claims than in the no-payment claims. Most centered on clinical findings and lack of description.

Conclusion

We offer these insights to help practitioners, practices, and healthcare systems direct their attention and their patient safety resources to best enhance safety and mitigate risks.