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An Empirical Data Comparison Of Regulatory Agency And Malpractice Legal Problems For Psychiatrists

Originally Published in Annals of Clinical Psychiatry, February 2014, Vol. 26, No. 1


By: James H. Reich, MD, MPH, Alan Schatzberg, MD
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BACKGROUND

Our objective is to compare legal difficulties that psychiatrists encounter in regulatory agency and malpractice (insurance) settings.

METHODS

Data sources included a literature search of malpractice and medical board discipline from 1990 to 2009 (rates and types of discipline); publicly available insurance data (malpractice frequency and type); and data from the National Practitioner Data Bank (NPDB) (required reports of malpractice settlements and hospital discipline).

RESULTS

Medical board discipline findings indicate that psychiatrists are at increased risk of disciplinary action compared with other specialties. NPDB data indicated relatively infrequent problems for psychiatrists. In malpractice, psychiatry accounted for a small percentage of overall claims and settlements. Overall, more years in practice and a lack of board certification increased the risk of legal difficulties.

CONCLUSIONS

There are shared and separate risk factors in the malpractice and regulatory agency areas, but there is evidence that these 2 legal areas are distinct from each other.


INTRODUCTION

Physicians encounter potential legal risks with both regulators and in the malpractice setting. We chose to examine empirical data in this report because it might have higher generalizability than literature that is not data-based and therefore might be more replicable in future studies. We are not aware of any reports comparing empirical data from malpractice and state regulatory board settings. Our goal with this report is to compare the risk factors for these 2 settings.

TABLE 1
Data from National Practitioner Data Base on Psychiatrist difficulties

 

Year

 Number of psychiatristsa

One or more malpractice claimsb

 License revocationb

 Loss of clinical privilegesb

 Medical Society expulsionsb

Mean dollar amount settlement

2004

47,140

0.827

0.212

0.085

0

$203,666.67

2005

48,832

0.881

0.225

0.082

0.020

$331,162.79

2006

48,645

1.090

0.411

0.062

0.041

$230,826.42

2007

48,940

1.43

0.368

0.122

0.061

$190,571.43

2008

48,262

0.559

0.083

0.021

0

$369,907.41

2009

48,054

0.645

0.125

0.083

0

$340,629.03

Trend Pc

 

0.18

0.12

0.70

0.80

0.31

a This indicates number of physicians indicating they practice in the area of psychiatry from the AMA national database.
b Rates are per 1000 psychiatrists per year.
c P for amount of settlement was based on analysis of variance other P values were based on the Jonckheere-Terpstra test.

METHODS

A literature search using PubMed was performed to iden tify studies of malpractice lawsuits or medical discipline of psychiatrists between 1990 and 2009. Search terms used were physicians, discipline, psychiatrists, and malpractice. We selected studies that had a representative sample base and empirical measures. We also used data from the insurance industry that was created for industry use but is available to the public.

Information from the National Practitioner web site is public record and was accessed online. The number of behavioral health disciplinary actions for physicians each year was divided by the number of physicians who indicated psychiatry as their primary area of practice in the American Medical Association tabulations of physicians.1 Trends for the National Practitioner Data Bank (NPDB) data in TABLE 1 are calculated by analysis of variance for amount of settlement and the remaining factors on TABLE 1 by the Jonckheere-Terpstra test.

RESULTS

Seven reports of medical board discipline in different states in the United States were identified and one from the United Kingdom. Information was available from 4 insurance companies, an arbitration board, and 2 sets of aggregated insurance company data. NPDB information was tabulated for 2004 to 2009 (2004 was chosen as a starting point because it was the first year the NPDB used behavioral health as a variable).

Results from regulatory agencies

Medical boards.

COMPARISONS OF PSYCHIATRISTS BEING DISCIPLINED COMPARED WITH OTHER SPECIALTIES.There are 3 reports about actions of the California Medical Board. These indicate psychiatrists have an increased rate of discipline compared with other specialties. The first found an odds ratio (OR) = 1.47.2 The second found an OR = 1.87.3 The third found that psychiatrists appear twice as frequently in the disciplined group as the non-disciplined group.4

A report based on the Ohio medical board describes a trend toward a more psychiatrists being disciplined by the medical board (OR = 0.73), however this did not reach statistical significance.5 The Oklahoma medical board report finds an increased risk of disciplinary actions against psychiatrists (P < .001).6 A report based on the Texas medical board finds that psychiatrists were among the specialties at highest risk of license revocation (OR = 2.68)7 (anesthesiologists and general practitioners also were among high-risk specialties).

A report based on the North Carolina medical board finds physicians with infractions against their licenses also have difficulty with substance abuse. The rate of impairment by substance abuse among psychiatrists is second only to that among anesthesiologists.8

A review on physicians in the United Kingdom with disciplinary problems finds psychiatrists represented the largest group of problem doctors (22%).9

EFFECT OF SEX. There may be a trend for males to have more disciplinary actions although this finding is not statistically significant in all studies. Morrison and Wickersham2 find an increased incidence of disciplinary action among males; the OR for females being disciplined is 0.44. Kohatsu et al3 find that males had an elevated risk of disciplinary action (OR = 2.76). Morrison and Morrison4 find increased risk of males being disciplined by the medical board (P = .0002 by binomial proportions test).

Clay and Canatser5 found a nonsignificant trend towards males having more disciplinary actions against them. Khaliq et al3 found a nonsignificant trend (after Bonferroni correction) for more males being disciplined by the medical board.

EFFECTS YEARS IN PRACTICE. The 4 reports that discuss this issue have similar findings. Clay and Conatser5 found that physicians who had been in practice ≥20 years were more likely to be subject to disciplinary action (OR = 1.51). Khaliq et al6 reported that the proportion of physicians disciplined significantly increased with each successive 10-year interval since their first licensure. Kohatsu et al3 find increasing age is a risk factor for disciplinary action (OR = 1.64). Cardarelli et al7 find the longer a physician has been in practice the greater the risk that he or she would have a license revocation (OR = 2.68).

EFFECTS OF MEDICAL TRAININg. Clay and Conatser5 found that psychiatrists who were disciplined were significantly less likely to be board certified (OR = 0.65). Morrison and Wickersham2 found that board certification was negatively associated with the probability of discipline (OR = 0.42). Kohatsu et al3 found increased chance of disciplinary action for graduates of international medical schools (OR = 1.36).

AREAS OF MOST FREQUENT CLINICAL DIFFICULTY. Morrison and Wickersham2 find 34% of cases involved negligence or incompetence, 14% alcohol or substance abuse, 11% inappropriate prescribing, and 10% involved inappropriate contact with a patient. Morrison and Morrison4 found 27% involved inappropriate conduct (sexual and non-sexual), 19% fraud, 17% negligence, 17% drug or alcohol impairment, 16% selling drugs, and 13% incompetence.

Substance abuse or inappropriate substance prescriptions are other problem areas. Morrison and Wickersham2 reported that physicians’ alcohol or drug problems accounted for 14% of complaints; inappropriate prescribing accounted for 11%. Clay and Conatser5 reported that impairment due to drugs or alcohol (21%) and inappropriate prescribing (14%) are among the most common complaints. Nanton et al8 find that among the most common infractions are alcohol/substance abuse (26%) and improper prescribing (22%).

OTHER PERTINENT VARIABLES. In general, these findings indicate that the more severe the patients’ illness, the higher likelihood of legal action. However, this is not absolute. Slawson10 found relatively few problems for psychiatrists performing electroconvulsive therapy (ECT) (also see Slawson and guggenheim11).

Khaliq et al6 report that patients found out about problems with their treatment from the general public (66%), other physicians (5%), and staff (4%).

Data from the NPDB. Data from the NPDB is in TABLE 1. The frequency of malpractice claims, license revocation and medical society expulsions is low in absolute terms. These rates do not show any significant change by year. Mean dollar settlement amounts were in the $200,000 to $300,000 range and did not vary by year.

Data related to malpractice

Data from individual insurance companies.

AMERICAN PSYCHIATRIC ASSOCIATION (APA) INSURANCE. We have 3 reports based on the APA insurance program. In a study of closed claims, Slawson12 found areas of complaint are: ineffective or incorrect treatment (50% of cases; often involving medication use); incorrect diagnosis (10%); and improper detention in the hospital (9%). Patients who sued tended to have significant psychiatric illness. Complaints were filed in two-thirds of the cases; of these 21% settled; there was a summary judgment in 6% of cases; and only 2% were tried. The most costly claims were undue familiarity (highest) followed by suicide.

Meyer13 reports loss information from the APA. Causes of loss are reported as: incorrect treatment (31%); suicide/attempted suicide (15%); other (15%); drug reaction (9%); incorrect diagnosis (9%); unnecessary commitment (6%); and improper supervision (6%).

The authors contacted the APA’s insurance agency, which provided claim loss information for claims from Jan 1, 2007 to Dec 31, 2007 (policy years 1998 to 2007). Causes of loss are: incorrect treatment (25.28%); suicide/ attempted suicide (21.06%); other (19.36%); confidentiality breach (17.32%); and drug reaction (9.62%)...

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James H. Reich, MD, MPH, is a board-certified Forensic Psychiatrist with extensive civil psychiatry experience who has done hundreds of evaluations. His services are available for civil and some criminal law cases. Clients are assured of his personal dedication to each case. He does high quality research, expert evaluations, writes a solid report, and will testify well. Dr. Reich has been deposed over 50 times.

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