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Kent G. Harbison

Kent G. Harbison Litigation

kharbison@fredlaw.com
(612) 492-7119
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And The Suit Goes On: Reporting Malpractice Settlement and Verdicts to the Board of Medical Practice

By: Kent G. Harbison

January 2003

Being sued for medical malpractice has increasingly become part of practicing medicine. Although it is difficult to find accurate statistics on the frequency of medical malpractice lawsuits, estimates are as high as one lawsuit filed for every 2.5 obstetricians, neurosurgeons, and orthopedists, and nearly one suit for every five physicians per year.1 It is estimated that about 39 percent of all physicians and over a half of obstetricians, gynecologists, and surgeons experience at least one claim in their career.2 The risk is real and applies to physicians in all specialties and all types of practice settings.

Physicians’ reactions to malpractice lawsuits are as varied as the individuals sued. Emotional reactions can include grief, anger, and depression. Physical symptoms range from fatigue to headaches to gastrointestinal symptoms.3 Malpractice lawsuits have led physicians to stop practicing or eliminate aspects of their medical practice that carry more risk.

Only a small percentage of cases actually go to a jury trial. The vast majority are dismissed or settled. Once a lawsuit is settled or results in a jury verdict against the physician, many physicians believe that the ordeal is over. But, often to the surprise of the physician, further action is required after either a settlement or a jury verdict.

The Minnesota Board of Medical Practice (BMP) requires that a report be made to the board when a lawsuit is settled or a jury awards damages. Minnesota law requires two types of reporting. First, four times each year, malpractice insurance companies must submit to the board a report on any professional malpractice settlements or awards made to plaintiffs.4 Second, clinics, hospitals, political subdivisions, or other entities that provide professional liability coverage on behalf of persons regulated by the board must submit a report on any malpractice settlements or awards they have paid as a result of care rendered by regulated persons for whom they pay coverage.5 Such reports must be made within 30 days of payment of the settlement or award. Physicians or clinics do not need to report forgiveness or adjustment of a patient’s bill because of a complication or an effort to help a patient.

A report is submitted directly by the insurance company, clinic, or hospital. Often a physician is advised when the report is submitted. The report must contain, at the minimum, the following information: the total number of settlements or awards; the date of the settlements or awards; the allegations contained in the claim or complaint leading to the settlements or awards; the dollar amount of each settlement or award; the regular address of the practice or the physician or business against which an award was made or with whom a settlement was reached; and the name of the physician or medical practice against which an award was made or with whom a settlement was reached.6

The submission of a report begins a process similar to that undertaken by the BMP when a complaint is filed. Physicians will generally receive a letter from the board requesting information about the nature of the lawsuit. This inquiry may arrive several months after resolution of the lawsuit and usually comes as an unwelcome surprise and an unpleasant reminder of the lawsuit.

The response by a physician is perhaps the most critical part of this process. The physician may benefit from legal counsel in drafting a response. Taking care to draft a thorough and accurate report based upon the physician’s recollection as well as review of the medical records will more likely lead to an early and favorable outcome. Responses should be based on fact, not speculation. The board may also request additional information, such as copies of medical records, from the physician. Attorneys representing the physician in the malpractice case may receive requests directly from the board for more detailed information about expert opinions or attorney analysis of the merits of the case.

Details of the board’s complaint process are beyond the scope of this article, but some cases involving reports stemming from malpractice settlements or awards may result in further action by the board.7 For example, if additional questions remain about the physicians conduct leading to the malpractice lawsuit, a physician may be asked to meet with an investigator from the attorney general’s office. Or the board may require a medical coordinator conference or appearance in front of the Complaint Review Committee. A medical coordinator conference is an informal meeting with a consulting private physician who works with the board part time. The Complaint Review Committee consists of two physician board members and one public board member. The Complaint Review Committee may recommend disciplinary action. A physician who does not agree with recommended restrictions to his or her license has the right to proceed to a contested case hearing before an administrative law judge.

In its biennial report, the Minnesota BMP noted that reports of professional liability settlements increased from 81 in 2001 to 107 in 2002. These numbers represented 10.5 percent of complaints in 2001 and 12.7 percent in 2002.8

Although the biennial report does not specifically list the outcome of the board’s review of liability reports, it is our experience that the majority of cases related to malpractice are dismissed by the board after the requested documentation and the physician’s response to the board’s inquiries are reviewed. The board may suggest modifications to the physician’s practice to help the physician minimize the risk of another similar malpractice case. The board is likely to discipline a doctor who is reported as a result of a malpractice case only if the alleged malpractice is especially egregious or is part of a pattern of mistakes. The dismissal of these cases is recognition by the board that complications and even errors do occur in medical practice. It is also recognition that settlement of a lawsuit or verdict against the physician is not necessarily indicative of bad practice. In our experience, even in those cases involving patient death or severe permanent injuries, the board generally does not discipline the physician. As long as the board is convinced that the physician tried to do the right thing and is conscientious and caring, and that the alleged malpractice is an isolated occurrence, it generally will not punish a physician for a random, unusual incident.

It is important to point out that the report to the BMP is distinct from reports that must be made to the National Practitioners Data Bank. The data bank is a federal repository of information about adverse actions involving licensure or clinical privileges and malpractice settlements and verdicts. Federal law requires that in the case of a settlement or judgment against a physician, the person or entity providing liability coverage must report information to the Data Bank and the appropriate state licensing board.9 Depending on the circumstances of the case, a report may be required to be made to the BMP but not to the National Practitioners Data Bank. However, in some cases reports must be made to both entities.

A claim alleging medical malpractice is an unpleasant reality for many physicians. Lawsuits may be settled or awards made against a physician for a variety of reasons, despite the fact that the physician believes the care he or she rendered was reasonable and appropriate. A letter from the BMP coming on the heels of a malpractice case will bring with it additional anxiety and stress. However, the history of cases reported to the board demonstrates that it will not automatically assume that a settlement or verdict in a malpractice case means that the physician should be disciplined. The physician’s response upon receiving an inquiry from the board is critically important to its understanding of the factors that led to the lawsuit.

References

  1. Anderson RE. Outcomes of medical-malpractice litigation [correspondence]. N Engl J Med. 1997;336:1680-1.
  2. Gonzalez ME, ed. Trends in physicians’ professional liability claims and insurance premiums. In: Socioeconomic Characteristics of Medical Practice. Chicago: American Medical Association; 1992.
  3. Charles SC, Wilbert JR, Franke KJ. Sued and nonsued physicians’ self-reported reactions to malpractice litigation. Am J Psych. 1985;142:438-9.
  4. Minn Stat. §144.111, subd. 5(a) (2000).
  5. Minn. Stat. §144.111, subd. 5(b) (2000).
  6. Minn. Stat. §147.111, subd. 5(c) (2000).
  7. For additional detail about the Board of Medical Practice and disciplinary action, see Harbison KG, The board of medical practice improves its complaint handling system. Minn Med. 1995;78 (1):43-7.
  8. Minnesota Board of Medical Practice. Biennial Report (7/1/00-6/30/02):16.
  9. Federal Register (2001), codified at 45 CFR§60.7(a).