Within the context of the current medical malpractice crisis, one approach to managing risk and reducing potential liability is to practice negative defensive medicine.

In this approach, a physician would attempt to identify categories of patients and/or conditions that are perceived to present an increased risk of litigation and to avoid treating those patients.¹ Although the uninsured, the indigent, and the elderly have been “type-cast” in this way, the available literature does not seem to support this assumption.^2-5

State analyses
A review ⁶ of approximately 31,000 hospital discharges in 1984 linked with malpractice claims in New York State found 51 claimants for an estimated 1,278 adverse events (defined as substandard care prolonging hospitalization and/or causing disability at the time of discharge). A minority of the claimants were found to have experienced an actual adverse event; and the vast majority of adverse events never produced a claim. Based on analyses of multiple demographic variables, researchers formed several conclusions on the propensity to sue.

Specifically, the uninsured, the poor, the young (under 16 years), and the elderly (older than age 65) were significantly less likely to sue compared to other groups. The investigators proposed an economic explanation for their observations. Because most tort cases are taken on a contingency basis and subsequently settled for financial damages, the relatively low monetary value of the cited demographic groups might not appeal to trial attorneys.

A similar study ⁷ linked malpractice claims data with clinical medical records from Colorado and Utah. A random sampling of 15,000 hospital discharges in 1992 (5,000 from Utah and 10,000 from Colorado) were reviewed and linked with insurer claims data through 1996, yielding 161 adverse events with identified substandard care, and 18 claimants (only four of whom had evidence of substandard care). Among the negligently injured who did not sue, investigators found that the poor, the uninsured, the elderly (older than age 75), and Medicare/Medicaid beneficiaries were much less likely to sue than other groups. Again, the assumption was that this group of potential litigants was not as economically appealing to plaintiff’s attorneys compared to more potentially affluent groups. This study also observed that the vast majority of identified adverse events did not result in liability lawsuits.

Federal assessment
In 1992, the Office of Technology Assessment (OTA) undertook an extensive literature review ⁸ to answer the question “Do Medicaid and Medicare patients sue physicians more often than other patients?” Although the data were considered to be sparse and not necessarily statistically significant, the OTA reached the following conclusions:

• Medicaid patients appear to be less litigious than other groups; Medicaid patients represented nearly 10 percent of the population at the time, but filed less than 5 percent of lawsuits.
• Although a few surveys suggested that obstetrical patients covered by Medicaid might sue more often than other groups, the data was regional and anecdotal.
• The percentage of obstetricians who thought that Medicaid patients tended to sue more often was declining—decreasing from 45 percent of those surveyed in 1986 to 34 percent of those surveyed in 1990.
• Settlements paid to non-Medicaid patients were 5 to 10 times greater than those paid to Medicaid patients.
• Given their high use of the healthcare system, especially for inpatient services, Medicare patients sued much less than expected compared to other patients.

Based on the data, the study ultimately concluded that there was no evidence to support the idea that Medicaid and Medicare patients sued more often than other groups; in fact, they might actually file fewer lawsuits than other groups.

Additional support
One other observation may support the idea that the uninsured, indigent, and elderly sue proportionally less often than other patient groups. All of the studies cited found many more instances of substandard care than there were claims or lawsuits. But at least one study has clearly demonstrated that patients with low socioeconomic status have an increased risk of receiving substandard care with secondary injury. ⁹ Thus it appears that although the indigent, the poor, and the elderly may have a higher incidence of mishaps from substandard care within the healthcare system compared to other groups, they file relatively fewer lawsuits.

Although much of this data is old and anecdotal, and its statistical validity is questionable, there is no evidence that the uninsured, the indigent, or the elderly are more likely to sue than other demographic groups. If fact, these groups may have a tendency for fewer lawsuits given their relative inability to attract the attention of plaintiff attorneys.

David E. Attarian, MD, is editor of the Orthopaedic Risk Manager section of AAOS Now and a member of the AAOS Medical Liability Committee. He can be reached at attar001@mc.duke.edu

References:

1. Attarian DE: Avoiding Complications and Managing Risk. In Medical Malpractice:How to Prevent and Survive a Suit. Data Trace Publishing Co., Brooklandville, Maryland 21022-9978, 2005, pp. 83-88.
2. Institute of Medicine. Medical Professional Liability and the Delivery of Obstetrical Care, I. Washington D.C.: National Academy Press, 1989.
3. American College of Obstetricians and Gynecologists. Survey of Professional Liability and Its Effects: Report of a 1987 Survey of ACOG’s Membership. Washington, D.C.. American College of Obstetricians and Gynecologists, 1988.
4. Dubay L, Kaestner R, Waidmann T. The impact of malpractice fears on the cesarean section rates. J Health Econ 18: 491-522, 1999.
5. Weinstein SL: The doctor-patient relationship: A casualty of the medical liability crisis. AAOS Bulletin- Orthopaedic Risk Manager 54(6):15, 2006.
6. Burstin HR, Johnson WG, Lipsitz SR, Brennan TA: Do the poor sue more?: A case-control study of malpractice claims and socioeconomic status. JAMA 270:1697,1993.
7. Studdert DM, Thomas EJ, Burstin HR, Zbar BIW, Orav EJ, Brennan TA: Negligent care and malpractice claiming behavior in Utah and Colorado. Medical Care 38:250, 2000.
8. Herdman R, Behney CJ, Wagner JL, etal.: Do Medicaid and Medicare patients sue physicians more often than other patients? Office of Technology Assessment, Congressional Board of the 102d Congress, 1992.
9. Burstin HR, Lipsitz SR, Brennan TA: Socioeconomic status and the risk for substandard medical care. JAMA 268:2383,1992.