Do Medicaid and Medicare Patients Sue

More Often Than Other Patients?

September 1992

NTIS order #PB93-176972
DO MEDICAID AND MEDICARE PATIENTS SUE PHYSICIANS

MORE OFTEN THAN OTHER PATIENTS?

BACKGROUND PAPER

Roger Herdman, Assistant Director, OTA

Health and Life Sciences Division

Clyde J. Behney, Health Program Manager

Judith L. Wagner, Project Director

Project Staff

Pony Ehrenhaft, Contractor

Other Contributing Staff

Jacqueline Corrigan, Senior Analyst

Leah Wolfe, Analyst

Philip Polishuk, Research Assistant

Administrative Staff

Marian Grochowski, Office Administrator

Kimberly Holmlund, Word Processing Specialist

Eileen Murphy, P.C. Specialist

Kelly Faulks, Secretary
Office of Technology Assessment

Congressional Board of the 102d Congress

GEORGE E. BROWN, JR., California, Chairman

TED STEVENS, Alaska, Vice Chairman

Senate House

EDWARD M. KENNEDY JOHN D. DINGELL

Massachusetts Michigan .

ERNEST F. HOLLINGS CLARENCE E. MILLER

South Carolina Ohio

CLAIBORNE PELL DON SUNDQUIST

Rhode Island Tennessee

ORRIN G. HATCH AMO HOUGHTON

Utah New York

CHARLES E. GRASSLEY JOAN KELLY HORN

Iowa Missouri

JOHN H. GIBBONS

(Nonvoting)

Advisory Council

JOSHUA LEDERBERG, Chairman

Professor

Rockefeller University

New York, New York

NEIL E. HARL, Vice Chairman

Professor

Department of Economics

Iowa State University

Ames, Iowa

CHARLES A. BOWSHER

Comptroller General of

the United States

Washington, D.C.

LEWIS M. BRANSCOMB

Director of Science, Technology &

Public Policy Program

Albert Pratt Public Service Professor

Harvard JFK School of Government

Cambridge, Massachusetts

MICHEL T. HALBOUTY

Chairman of the Board&

Chief Executive Officer

Michel T. Halbouty Energy Co.

Houston, Texas

JAMES C. HUNT

Chancellor

Health Sciences Center

University of Tennessee

Memphis, Tennessee

HENRY KOFFLER

President Emeritus

University of Arizona

Tucson, Arizona

MAX LENNON

President

Clemson University

Clemson, South Carolina

Director

JOHN H. GIBBONS

CHASEN. PETERSON

President Emeritus and Professor

University of Utah

Salt Lake City, Utah

JOSEPH E. ROSS

Director

Congressional Research. Service

The Library of Congress

Washington, D.C.

JOHN F.M. SIMS

Vice President, Marketing

Usibelli Coal Mine, Inc.

Fairbanks, Alaska

MARINA v.N. WHITMAN

Vice President & Group Executive

Public Affairs Staffs Group

General Motors Corporation

Detroit, Michigan

The views expressed in this background paper are not necessarily those of the Board,

OTA Advisory Council, or individual members thereof.

.
FOREWORD

Whether Medicaid and Medicare patients are likely to sue more or less often than other

patients is a critical question in studying the recent trend of reduced physician participation in

Medicaid and other publicly funded programs.

The Office of Technology Assessment addressed this issue as a part of its larger study

on Defensive Medicine and the Use of Medical Technology. Denying medical access to

patients whom physicians feel are more Litigious is defined as negative defensive medicine.

This has become a particularly acute problem in the practice of obstetrics. The increased

possibility of an adverse outcome, and therefore a potential lawsuit, as well as steeply rising

malpractice insurance premiums is said to have driven physicians from the practice of

obstetrics or significantly curtailed their volume of deliveries.

This background paper also responds to the request of the Congressional Sunbelt

Caucus that OTA examine and judge the available evidence on whether Medicaid and

Medicare patients, particularly obstetrics patients, are more litigious than other patients.

Although the evidence is sparse, OTA’s conclusions are strong: these patients are not more

likely to sue and may actually sue less often than would be expected on the basis of their

medical risks. A growing majority of obstetricians apparently agree with this assessment.

JOHN H. GIBBONS

Director
DO MEDICAID AND MEDICARE PATIENTS SUE PHYSICIANS

MORE OFTEN THAN OTHER PATIENTS?

SUMMARY

Fear of being sued for malpractice is often cited as one reason for the distressing trend

of reduced physician participation in Medicaid and other publicly funded programs (8).

Physicians in many specialties report practice changes in response to the threat of malpractice

liability, including dropping services to medically “high-risk” patients. But the problem is

particularly acute in the practice of obstetrics (32). As of 1990, 24 percent of obstetricians

reported they limited their high-risk obstetric care and 12 percent stopped practicing obstetrics

altogether (21). Over one-third of practicing obstetricians responding to a 1987 survey did not

provide services to Medicaid patients (5). The American Academy of Family Physicians

reports a continuing trend among its membership to drop obstetrics services; by 1990, only 28

percent of family practitioners continued to provide obstetric services (8,1). Although concern

about malpractice is not the only reason for obstetric providers’ changing practice patterns,

these surveys indicate that access to care for poor patients has suffered.

But do Medicaid patients sue doctors more often than other patients? Anecdotal

information suggests that a significant proportion of physicians believe that poor patients sue

more often (8). Some lawyers maintain that the doctors should expect the poor to sue less

frequently because it is difficult for poor people to obtain legal representation for malpractice

claims (13). Malpractice suits are typically brought on a contingent fee basis and awards are

based on future earnings as well as pain and suffering. Thus, representing the poor and the

elderly may not be as economically profitable for private bar lawyers as representing those

with substantial potential future earnings. On the other hand, the courts do not assume that the
children of poor families are also likely to be poor, and claims for injuries to newborns have

historically brought some of the highest payments of all malpractice awards (29). Therefore,

under the contingency fee system the potential for large damage awards should equalize access

to presentation for Medicaid obstetric patients.

The Office of Technology Assessment undertook a literature review to examine the

issue of whether Medicaid and Medicare patients are more litigious than other patients. The

existing literature on this subject is not large and suffers from a number of limitations.

Surveys, whether of physicians, hospitals, or insurers, are inherently limited by problems of

recall, selection bias, and inter-respondent variations in interpretation and quality of data

preparation. For those studies that actually examined malpractice claims, most did not have

access to data on the entire population of malpractice claims in an area. Only two studies were

able to relate proportionate representation in a universe of claims with proportionate use of

health care services. The results of these studies were considered most valid and given

considerable weight in reaching conclusions. Congruent results from numerous studies, even

when sample sizes were small, also weighed heavily in making findings.

Despite the sometimes contradictory evidence and the methodological problems, OTA

reached several conclusions from this literature review. Each of the findings that follow is

discussed extensively in the text.

.

FINDINGS ON THE MEDICAID POPULATION

(1) Medicaid patients sue physicians less frequently than would be expected by their

relative proportion of the population. Four studies, one national and three

statewide, compared the proportion of malpractice claims filed by Medicaid

recipients with the proportion of the population enrolled in the Medicaid Program.

All the studies had congruent findings, and one, which examined malpractice

2
.

(2)

(3)

(4)

claims in Maryland, had high internal validity. However, this finding may reflect

the Medicaid population’s less frequent use of the health care system compared

with other groups rather than a lower statistical propensity to sue.

Information on financial settlements in malpractice cases is insufficient to reach

conclusions about Medicaid versus non-Medicaid awards. A national study of

1984 claims found Medicaid patients received lower average malpractice awards

than non-Medicaid patients. The only two other studies that reported financial

awards found higher awards for Medicaid patients compared with other patients.

Because of the small number of claims available for analysis in both studies, these

findings have anecdotal rather than statistical significance.

Medicaid obstetric patients probably sue physicians about as often as other patients,

but the evidence is not conclusive. The Maryland study, which had high internal

validity, found that the percent of malpractice claims filed by Medicaid patients did

not exceed the proportion of Medicaid hospital discharges for obstetric services.

Another statewide study found fewer Medicaid claims filed than expected by the

relative proportion of Medicaid births. On the other hand, two other surveys, one

of which was national in scope, found higher rates of litigation than expected

among Medicaid obstetric patients. However, the difference between Medicaid

malpractice filings and discharges in the national survey of hospitals was, not

statistically significant.

Although about one-third of obstetricians believe that Medicaid patients sue more

often than other patients the extent of this belief has diminished in the recent past.

The American College of Obstetricians and Gynecologists surveyed obstetricians in

3
1986 and again in 1990 and asked if their belief that Medicaid patients sue more

often is a deterrent to their participation in the Medicaid program. In the first

survey, 45 percent of the obstetricians who did provide services to Medicaid

recipients cited this belief, but in 1990 there was

proportion of these participating obstetricians (to

they believe Medicaid patients are more likely to

a significant drop in the

34 percent) who indicated that

sue.

FINDINGS ON THE MEDICARE POPULATION

Medicare patients sue physicians less frequently than expected given their heavy use of

health services. Although only one statewide study examined elderly people’s litigiousness, it

was a well conducted study.

REVIEW OF EVIDENCE

Medicaid Patients Sue Physicians Less Frequently Than Other Patients.

Table 1 shows the results of four studies that compared Medicaid patients’ rate of filing

medical malpractice claims with their representation in the population. Three of the studies

examined malpractice claims that were closed, and the other study reported responses from a

physician survey. All the studies found that Medicaid patients filed malpractice claims

considerably less frequently than would be expected by the proportion of the population

enrolled in the Medicaid Program. Moreover, the studies had remarkably congruent findings.

The proportion of malpractice suits initiated by Medicaid recipients ranged from 4 to 9 percent

of total claims, and total Medicaid enrollment was 9 to 12 percent of the total populations. A

discussion of these studies follows.

The General Accounting Office (GAO) analyzed data from a random sample of

malpractice claim files closed in 1984 by 25 insurers (29). Relying on information provided

solely by the insurers, this baseline national study provided data for a myriad of issues related

4
.

to malpractice liability. Overall, Medicaid recipients accounted for about 9 percent of the

U.S. population in 1984. GAO found that only 3.9 percent of malpractice claims involved

Medicaid recipients, but the source of payment of the patients’ health care costs was not

identified by the insurers for 32 percent of the claims sample. When the claims for which

 payer status is unknown are eliminated from the calculation, Medicaid claims represented 5.8

percent of all claimsl (8).

The Michigan Department of Licensing and Regulation reviewed the Insurance

Bureau’s medical malpractice closed claim data base for the years 1985 through 1987 (27).

They found that Medicaid-related closed claims accounted for 6.23 percent of all closed

claims, while the Medicaid-eligible population for the same period ranged from 10 to 11

percent of the total population of Michigan.

In another statewide study, researchers examined all malpractice claims filed during

1985 and 1986 in Maryland (16). They found that the percent of claims attributed to people

who had ever been enrolled in Medicaid was approximately the same or slightly higher than

the proportion of the State population enrolled in Medicaid. However, when only those claims ‘

filed by people enrolled in Medicaid before or during the incident were examined, the

proportion of claims filed by Medicaid enrollees was lower than the overall proportion of

Medicaid enrollees in the State (See Table 1). In 1985 and 1986, respectively, 47 and 22

percent of claims filed by Medicaid recipients were filed by people who were first enrolled in

Medicaid only after the alleged malpractice incident.

Of the four studies discussed here, the Maryland study employed the most rigorous

methodology and the most valid data base. The universe of malpractice claims could be

captured because during the study period Maryland required that all health care malpractice

1 This adjustment may overestimate Medicaid patients’ contribution to the claims sample

because the assumption is that the unknowns are distributed similarly to the knowns. A likely

reason for omission of payer status in the claims file is that the patients had no source of

payment for their health care costs.

5
—— . . . -.

claims in excess of $5000 be submitted to a central arbitration office for pretrial screening.

The researchers then used state Medicaid enrollment history data to determine the Medicaid

eligibility status of claimants before, during, and/or after the date of the alleged malpractice

incident.

The Maryland study illustrates how important it is to exclude Medicaid recipients who

became eligible for Medicaid after the malpractice incident for which they are suing. Socalled “spend-down” provisions in most States (including Maryland and Michigan), allow

individuals whose incomes lie above Medicaid’s financial-need level to qualify for Medicaid if

their medical expenses are high enough to reduce their countable income below the financial

maximum. Because the Michigan study, which found the percent of Medicaid-related claims

to all closed claims in the State to be substantially lower than that of the Medicaid-eligible

.

population within the total population, did not control for pm-incident eligibility for Medicaid,

it may have overestimated the number of Medicaid claims. Presumably, improved data would

show an even lower percentage of total claims filed by people who were Medicaid recipients at

the time of the medical incident. The GAO survey instrument specifically asked the insurer

for the source of payment of the patient’s health care costs prior to the liability injury (29).

The insurers’ inability to answer this question based on their data may have contributed, in

part, to the substantial percentage of claims for which payer status is unknown.

The most serious shortcoming of all three of these studies is that they compare the

litigiousness of Medicaid patients with their proportionate representation in the general

population. But representing 11 percent of a State’s population does not mean that Medicaid

recipients use 11 percent of the State’s health care resources. In fact, although there is

considerable variation from State to State, nationally in 1986 about 70 percent of all Medicaid

eligibles were enrolled as Aid to Families with Dependent Children (AFDC) program

participants. Only 23 percent of total Medicaid payments were made on behalf of these AFDC

beneficiaries (31). Other Medicaid recipients include certain aged, blind, and disabled

6
.

individuals. These latter beneficiaries might be expected to be heavier than average users of

health care, while the large proportion of underage children enrolled in the Medicaid program

would be expected to be less frequent users of health care. Sorting out expectations for use of

health care by the diverse and changing population of Medicaid beneficiaries is not possible

without empirical data from health care providers. It should be noted that the finding that

Medicaid recipients as a group are less litigious than other patients may reflect less frequent

participation in the health care system rather than a lower statistical propensity to sue.

The remaining study cited in Table 1 is based on physicians’ reports about malpractice

claims brought against them and the patient populations served in their practices. In 1988, the

Texas Medical Association surveyed a random sample of physicians in all specialties by mail

about their malpractice claims experience in 1986 and 1987 (28). Physicians were asked how

many suits were filed against them resulting from care to Medicaid patients, and they were

also asked to estimate the percentage of their total patients who were covered by Medicaid.

The study found Medicaid patients filed 3.5 percent of all malpractice suits and accounted for

about 12 percent of all patients seen by Texas physicians.

Surveys that depend on physician recall and perception have a high degree of error.

Aggregating such inexact estimates can only result in an inexact statistic. Moreover, there is

some evidence that physicians generally tend to overstate the proportion of Medicaid patients

in their practice (10,8). Reports of claims data can also be inaccurate. A study assessing the

impact of malpractice litigation on the doctor-patient relationship found that 10 percent of

surveyed physicians denied ever having been sued despite independent confirmation of claims

having been filed (26). The extent to which such over- and/or under-estimation affects the

validity of the results of these provider surveys cannot be determined.
Medicaid Obstetric Patients Probably Sue Physicians About As Often As Other Patients,

But The Evidence Is Not Conclusive.

Congressional concern over increasingly limited access to obstetric care for poor

women because of physicians’ responses to malpractice pressures spurred this literature

review. Obstetricians/gynecologists and general surgeons are the most frequently sued

.

physicians in malpractice cases (29). The American College of Obstetricians and

Gynecologists (ACOG) physician survey reported that as of 1990, 78 percent of surveyed

obstetricians indicated they had at least one professional liability claim filed against them over

the course of their careers; this was a statistically significant increase from the 71 percent

reporting at least one claim in 1987 (21).

Comparing malpractice claim rates with the frequency of births in different populations

is a good indicator of relative litigiousness because obstetric patients share a common condition

and can be expected to use health care services somewhat similarly, regardless of payer status.

It should be noted, however, that numerous studies have shown that impoverished women

enter maternity care later in their pregnancy and receive less care than women with incomes

above poverty levels (30). Moreover, maternal low-income status is associated with higher

morbidity and mortality for newborns (30,33). Statistically, therefore, Medicaid obstetric

patients are more frequently medically “high risk” patients.

Because Medicaid patients have a greater incidence of adverse outcomes during birth,

one might also expect that Medicaid patients would have a higher suit rote. For example, if

one found that non-Medicaid patients had 5 adverse outcomes per 100 births, but Medicaid

patients had 20 adverse outcomes per birth, one would expect more suits to be initiated by
.

Medicaid patients because they suffered more injuries. 2 A suit rate among Medicaid obstetric

patients that is no greater than among non-Medicaid patients suggests that the Medicaid

patients may be even less litigious than the data shown.

Table 2 shows the results of four studies that related the proportion of obstetric

malpractice claims filed by Medicaid recipients to their proportion of all obstetric patients. In

the first study, the same researchers who examined all Medicaid claims in Maryland also

analyzed the subset of obstetric claims filed by Medicaid recipients (16). They were able to

capture the proportion of obstetric patients discharged from Maryland hospitals who were

covered by Medicaid because Maryland collects computerized abstracts on all hospital

discharges. The availability of data sets in Maryland covering the universe of both malpractice

claims and hospital discharges permits an analysis with high internal validity. The study found

the proportion of obstetric claims filed by Medicaid recipients was identical (21 percent) to the

proportion of Medicaid hospital discharges for obstetric services during the period in which the

incidents occurred.

In another statewide study, researchers at the University of Washington examined the

incidence of obstetric malpractice claims brought against private physicians by Medicaid

patients (4). Washington has no central database on malpractice claims, so researchers used the

closed obstetric claims (filed between 1982 and 1988) of the major obstetric malpractice

insurer as the claim frequency measure. The majority of physicians serving obstetric patients in

Washington are insured with this physician-sponsored insurance company, but several large

physician groups who serve Medicaid patients, including physicians practicing at the

2 Admittedly, malpractice suits should be brought only if there is negligence on the part of the

physician, and there is no evidence that the higher rate of adverse outcomes for Medicaid

patients is tied to negligence. On the other hand, mothers of severely injured infants may be

motivated by a number of factors in filing a suit, including the need to pay for long-term care,

a realization that the child has no future, a desire to deter future malpractice, or to seek

revenge (’7). Moreover, if negligence can not be completely ruled out, a lawyer might decide

to bring the suit given the size of potential damages.

9
University hospital or at a large health maintenance organization, are no insured with this

company (23,2). Total obstetric claims during this period (62 claims) were a little more than

half those reported by the Maryland study (100 claims). Eleven percent of the recorded

obstetric claims in Washington were brought by Medicaid patients. In comparison, the

proportion of all births in Washington that were delivered by Medicaid recipients during the

study period was 19 percent. Researchers then adjusted the comparison group based on

physician survey data to account for the relatively fewer Medicaid recipients cared for by the

private physicians in their practices than in the general population; this calculation estimated

that about 17.5 percent of obstetric patients cared for by the private physicians were Medicaid

recipients (4,3).

Despite the data limitations of the Washington study, the findings bolster the

.

conclusions of the Maryland study. Are Maryland and Washington similar to the rest of the

country? According to physician surveys, Maryland is in the least litigious area of the country

while states in the West (excluding California) have some of the higher rates of malpractice

litigation among obstetric providers (20,21,32). Both of these states have enacted malpractice

tort reforms, but the legislative changes did not disproportionately affect the ability of

Medicaid recipients to initiate malpractice claims during the study years3 (24,2,14).

One national study found Medicaid obstetric patients sued less than expected. The

mission of Federally funded community and migrant health centers is to provide care to poor

and uninsured people; 25 to 40 percent of their patients are eligible for Medicaid (13). A 1986

survey of community and migrant health centers found that only 16 percent of health center

obstetricians had ever been sued for malpractice compared with 73 percent of obstetricians

3 A 1986 legislative change in Maryland requires a “certificate of merit” be filed within 90

days of making a malpractice claim. Because the cost of filing is estimated to be between

$500 and $800, Medicaid recipients could face a financial barrier to initiating a malpractice

suit. This requirement did not affect the claims examined in the Maryland study cited here

(14).

10
.

nationally (17,18). Direct comparison between health centers’ obstetricians and the national

sample has two important limitations: the health center survey involved very few claims (only

14 claims were obstetric); and most health center obstetricians had been in practice for a

relatively short time.

The remaining two studies cited in Table 2 had contrary findings. ACOG surveyed a

random stratified sample of 313 hospitals in 1987 about their obstetric malpractice claims

experience in 1982 (19). Surveyors depended on hospitals to complete questions about claims

by patient payer status. Hospitals however, vary in how such information is maintained and

retrieved. The survey found that while Medicaid patients tended to be over represented as

litigants (24.8 percent of all claims) relative to the proportion of deliveries they represented

(17.1 percent), the difference was not statistically significant.

Finally, respondents in a 1986 Washington State survey of 1537 obstetric providers

(obstetricians, family practitioners, and midwives) said that 26 percent of their reported

malpractice claims had been initiated by Medicaid recipients, whereas Medicaid patients

accounted for only 17.6 percent of their practices (24).

The survey asked providers to estimate the proportion of their obstetrics practice

represented by Medicaid patients over the years 1985 to 1987. Such estimates are totally

subjective, but the finding of 17.6 percent is remarkably consistent with the finding of the

other Washington State study that examined the obstetric claims of a major insurer. The latter

study by Baldwin et al. concluded from other unrelated physician surveys that 17.5 percent of

the births in Washington that were cared for by private practitioners between 1982 and 1988

were Medicaid recipients. (4)

The Washington survey also relied on obstetric providers estimates of whether they

were ever named in an obstetric malpractice suit and the number of such suits filed by

Medicaid recipients (6). Like the Texas survey of physicians discussed in the previous section,

such surveys that depend on physician recall and perception are subject to a high degree of

error.

11
Information On Financial Settlements in Malpractice Cases is Insufficient to Reach

Conclusions About Medicaid Versus Non- Medicaid Awards. “

Few studies examined the amount of malpractice settlements by patient, the patient’s

kind of insurance or payment. The GAO study that analyzed a national sample of claims in

1984 found that a Medicaid plaintiff’s average malpractice award was approximately $50,000,

compared with an average $250,000 award for privately insured patients4 (29). There were

almost 1500 paid claims to Medicaid recipients in the sample. One factor influencing the

amount of the award was that Medicaid recipients most often experienced “insignificant”

injuries (24 percent) and “minor temporary disabilities” (about 23 percent).

The two other studies that reported malpractice awards by payer status found higher

awards for Medicaid patients than for non-Medicaid patients. Both studies are limited by the

small number of claims and potential selection bias in the claims available for analysis. The

researchers who studied malpractice claims in Maryland examined the size of the award for

those claims requiring a formal hearing for resolution. (Details of claims settled prior to

formal arbitration are private (16)). These included only five Medicaid and 65 non-Medicaid

claims (12 percent of all malpractice claims examined in the study). The median award for the

Medicaid claims was $80,000 and for the non- Medicaid claims, $58,000. The claims filed by

Medicaid beneficiaries were more likely to involve injuries of a permanent nature, while nonMedicaid claimants were more likely to have temporary injuries or injuries resulting in death.

The GAO study determined that the highest median indemnity payments are for permanent

disabilities (29).

The study of obstetric malpractice claims in Washington found the mean indemnity

three times greater for the Medicaid claims ($351,000) than for the non-Medicaid claims

($108,000) (4). Obstetric claims result in the highest median and average payments (29).

was

One

4 The published GAO data only include payout in one year. Because large awards frequently

involve payments over time, the averages in the report understate the effect of these awards.

The results reported here are based on a retabulation of the data (15).

12
hypothesis is that because of such high payouts, Medicaid obstetric recipients with severe

injuries can find representation for their malpractice claims. However, like the Maryland

study, the number of Medicaid claims about which financial information is available in the

Washington study is too small to infer statistical significance. Two of seven Medicaid

settlements were for over $500,000 while 4 of the 55 non-Medicaid settlements surpassed that

amount.

Medicare Patients Sue Physicians Less Frequently Than Expected Given Their Heavy Use

of Health Services.

OTA was also asked to examine whether Medicare patients, who are generally over 65

years of age, are more or less litigious than other patients. Only one study specifically

addresses how often the elderly sue physicians. Like the study of malpractice claims in

Maryland, researchers in Wisconsin were able to examine a universe of claims and relate the

results to measures of health care use. Thus, the study’s results can be considered reliable and

valid. In Wisconsin all malpractice claims must be filed with the Patients Compensation

Panel, which reviews them as a prerequisite to initiating a circuit court action. The study

analyzed 431 malpractice claims filed in 1983 and 1984. The frequency of litigation by age

was compared with the age distribution of Wisconsin’s population and also with the number of

hospitalizations and inpatient

was used as a measure of the

system (25).

days for those above and below the age of 65. The latter analysis

frequency of litigation according to exposure to the health care

The study found that the elderly filed 10 percent of the malpractice suits and made up

12.7 percent of the population in Wisconsin during the study years. These results coincide

with the 9.9 percent of all malpractice claims filed by Medicare beneficiaries in the national

sample reported by the GAO (29). When proportion of the population is used as the

comparison group, the elderly sued about as often as expected.

13
However, when the number of claims was compared to use of health services, a better

measure for determining litigiousness, Medicare patients were less likely to sue. The elderly

in 1984 accounted for almost one-third of the admissions to hospitals, where more than 80

percent of malpractice injuries occur (25). When the Wisconsin researchers compared the

frequency of litigation of the elderly with their rates of hospitalization and inpatient days, the

elderly’s rate of filing claims was significantly (P< .001) lower than expected. The authors

hypothesize that the difficulty in proving causation (the elderly may have numerous preexisting

illnesses), the contingency fee system, and the limited Life expectancy of advanced age may

combine to limit malpractice litigation and compensation for the elderly.

About One-Third of Obstetricians Believe That Medicaid Patients Sue More Often Than

Other Patients.

Few surveys directly ask physicians if they believe Medicaid patients sue more often.

ACOG has periodically surveyed its membership for the past decade about changes made in

their personal practices as a result of the risk of malpractice (21). The surveys do not ask

specifically about changes in the acceptance of Medicaid patients. Likewise, the American

Academy of Family Physicians (AAFP) has tracked the continuing decline in the practice of

obstetrics by family practitioners. AAFP asks only if the cost or “other reasons” related to

malpractice liability are responsible for dropping obstetric

litigiousness of Medicaid patients are not queried (22).

However, ACOG’s Committee on Health Care for

obstetricians in 1986 specifically to find out what services

services; concerns about the

UnderServed Women surveyed

were being provided to Medicaid

patients and other low-income women (5). The national random sample produced a response

rate of 45 percent, and nearly two-thirds (63 percent) of the obstetric providers indicated that

they provide care to Medicaid patients.

14
The belief that Medicaid patients are more likely to sue was rated as a major deterrent

to Medicaid participation by 41 percent of the obstetricians who do not provide services to

Medicaid patients. Those in solo fee-for-service practices were more likely to cite this belief

as an important reason for nonparticipation than were those in other practice settings. An even

higher percentage (45 percent) of obstetricians who do provide obstetric services to Medicaid

patients reported the concern that Medicaid patients are more likely to sue. The issues of low

reimbursement, denial of eligibility, and slow payment were consistently listed by both groups

of obstetricians as more significant problems in dealing with the Medicaid system than their

belief that Medicaid patients are more likely to sue.

In 1990, the ACOG committee repeated the survey of a national sample of obstetricians

with the same questions (9). Thirty-nine percent of the obstetricians who do not provide

obstetric services for Medicaid recipients indicated that their concern that Medicaid patients

more likely to sue is a barrier to Medicaid participation. However, this was a problem for

only 34 percent of the obstetricians who do provide care to Medicaid patients. Therefore,

there was a significant decline between surveys in the number of obstetricians who believe that

Medicaid patients sue more frequently, at least among those obstetricians who are serving

Medicaid patients.

Similar findings come from unpublished surveys of obstetric providers in the state of

Washington (3). In 1989, 1267 obstetricians and family practitioners were asked how likely

Medicaid patients are to file malpractice suits compared with other patients. Forty-three

percent of the obstetricians and 30 percent of the family practitioners responded that Medicaid

patients are more likely to file suits than other

1991 survey asking the same question showed

percent of the family practitioners believe that

other patients.

patients. Preliminary results from a similar

that 28 percent of the obstetricians and 15

Medicaid patients are more likely to sue than

15
The belief that Medicaid patients sue more often is held by a substantial minority of

physicians who practice obstetrics, but by no means the majority. The recent significant

decrease in the proportion of physicians professing this belief, however, may indicate that

physicians’ perceptions are coming into line with reality. Moreover, the extent to which

physicians’ unwillingness to provide services to Medicaid women is motivated by this factor or

by other concerns, such as inadequate compensation or red tape, cannot be determined from

the existing evidence.

16
Table l--Proportion of Malpractice Claims Filed By Medicaid Patients

Compared With the Proportion of Population Enrolled in Medicaid

Malpractice Claims Filed Population Enrolled

by Medicaid Patients in Medicaid

claims Population

Reference Claim Years % Denominator % Denominator

GAO” 1984 5.8 Sample of closed 9 Total U.S.

claims in U.S. population

Michigan b

1985-87 6.2 closed claims in 10-11 Total Michigan

Michigan population

Marylandc

1985 7.2 Claims filed in 11.1 Total Maryland

1986 9.1 Maryland 10.9 population

Texas d

1986-87 3.5 Claims reported by 12 Total patients of

Texas physicians surveyed Texas

physicians

aU. S. Congress, General Accounting Office, Medical Malmactice: Characteristics of Claims Closed in 1984, GAO/HRD-87-55 (Washington, DC: U.S. Government

Printing Office, 1987).

bshte of Michigm, Dep@ment of Social Services, Medicaid Matters 3(2), 1989”

cMussman, M. G., Zawistowich, L., Weisman, C. S., et al., “Medical Malpractice Claims Filed by Medicaid and Non-Medicaid Recipients In Maryland, ” JAMA

265(22):2992-2994, 1991.

*Texm M~ical AssNiation, Austin, ~, unpublish~ hb from the Texas Medical Assaiation’s 1988 professional Liability Survey, un~t~.
Table 2--Proportion of Obstetric Malpractice Claims Filed By Medicaid Patients

Compared With the Proportion of Obstetric Patients Enrolled in Medicaid

Obstetric Claims Filed Obstetric Patients

by Medicaid Patients Enrolled in Medicaid

Claims Population

Reference Claim Years % Denominator % Denominator

Maryland’ 1985-86 21 Obstetric claims

filed in Maryland

Washington b

1982-88 11 Closed obstetric

claims of a major

insurer in Washington

21 Obstetric patients

discharged in Maryland

7.5 Births in Washington

cared for by

private practitioners

1982

1986

ACOGC

24.8 Obstetric claims 17.1 Deliveries reported

reported by surveyed by surveyed U.S.

U.S. hospitals hospitals

Washington d

26 Obstetric claims 17.6 Total obstetric patients

reported by surveyed reported by surveyed

Washington obstetric Washington obstetric

providers providers

‘Mussrnan, M. G., Zawistowich, L., Weisman, C. S., et al., “Medical Malpractice Claims Filed by Medicaid and Non-Medicaid Recipients In Maryland, ” JAMA

265(22):2992-2994, 1991.

bBaldwin L M , Gr&r, H T , Wu, R., et al., ‘Differences in the Obstetric Malpractice Claims Filed by Medicaid ~d Non-M~icaid patients>” J Am Board ‘f 

. . .,

‘am

Pract (forthcoming).

cOpinion Research Corporation, “Hospital Survey on Obstetric Claim Frequency by Patient Payor Category, ” prepared for the American College of Obstetricians and

Gynecologists, Washington, DC, 1988.

dRosenblatt, R.A. and Detering, ‘-> “Changing Patterns of Obstetric Practice in Washington State: The Impact of Tort Reform, ” Familv M~icine, 20(2): 101-107,

1988.
REFERENCES

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

American Academy of Family Physicians, Facts About Fami,lv Practice. 1991 (Kansas

City, MO: American Academy of Family Physicians, 1991).

Arveson, J., Washington State Medical Association, Seattle, WA, personal

communication, February 1992.

Baldwin, L-M., School of Medicine, University of Washington, Seattle, WA, personal

communication, February and March 1992.

Baldwin, L-M., Greer, H. T., Wu, R., et al., “Differences in the Obstetric Malpractice

Claims Filed by Medicaid and Non- Medicaid Patients, ” J Am Board Fam Pract

(forthcoming).

Committee on Health Care for Undeserved Women, American College of

Obstetricians and Gynecologists, Washington, DC, “Ob/Gyn Services for Indigent

Women: Issues Raised by an ACOG Survey, ” undated.

Detering, B. J., “Obstetrical Providers’ Participation in Medicaid and Attitudes Toward

Medicaid Recipients: Washington State - 1986, ” unpublished manuscript, February

1988.

Hickson, G. B., Clayton, W. E., Githen, P. B., et al., “Factors That Prompted Families

to File Medical Malpractice Claims Following Perinatid Injuries, ” JAMA

267(10):1359-1363, 1992.

Institute of Medicine, Medical Professional Liabilitv and the Delivery of Obstetncal

Care, Vol I and XI (Washington, DC: National Academy Press, 1989).

Kami.netz&, H. A., American College of Obstetricians and Gynecologists, Washington,

DC, personal communication, March 1992.

.

Kletke, P. R., Davidson, S. M., Perloff, J. D., et al., “The Extent of Physician

Participation in Medicaid: A Comparison of Physician Estimates and Aggregated

Patient Records, ” Health Serv Res 20:503-523, 1985.

Lewis-Idema, D., Increasing Provider Participation. (Washington, DC: National

Governors’ Association, 1988).

Localio, A. R., Lawthers, A. G., Breman, T. A., et al., “Relation Between Malpractice

Claims and Adverse Events Due to Negligence: Results of the Harvard Medical

Practice Study III, ” N Engl J Med 324(4):245-251, 1991.

McNulty, M. ,“Are Poor Patients Likely to Sue for Malpmctice?, ” JAMA

262(10):1391-1392, 1989.

Morlock, L. L., Department of Health Policy and Management, The Johns Hopkins

University School of Hygiene and Public Health, Baltimore, MD, personal

communication, February 1992.
.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

Morlock, L. L., unpublished data as cited in Lewis-Idema, D., Increasing Provider

Participation, (Washington, DC: National Governors’ Association, 1988).

Mussman, M. G., Zawistowich, L., Weisman, C. S., et al., “Medical Malpractice

Claims Filed by Medicaid and Non-Medicaid Recipients in Maryland, ” JAMA

265(22):2992-2994, 1991.

National Association of Community Health Centers, Washington, DC, “The Medical

Malpractice Claims Experience of Community and Migrant Health Centers, ”

unpublished, February 1986.

Needham, Porter Novelli Inc., “Professional Liability Insurance and Its Effect: Report

of a Survey of ACOG’s Membership, ” prepared for the American College of

Obstetricians and Gynecologists, (Washington, DC: Needham, Porter Novelli Inc.,

1985.)

Opinion Research Coqmation, “Hospital Survey on Obstetric Claim Frequency by

Patient Payor Category, ” prepared for the American College of Obstetricians and

Gynecologists, (Washington, DC: Opinion Reseamh Coloration, 1988.)

Opinion Research Corporation, “Professional Liability and Its Effects: Report of a

1987 Survey of ACOG’s Membership, ” prepared for the American College of

Obstetricians and Gynecologists, (Washington, DC: Opinion Research Corporation,

March 1988.)

Opinion Research Corporation, “Professional Liability and Its Effects: Report of a

1990 Survey of ACOG’s Membership, ” prepared for the American College of

Obstetricians and Gynecologists, (Washington, DC: Option Research Corporation,

September 1990.)

Robinson, C., The American Academy of Family Physicians, Kansas City, MO,

personal communication, January 1992.

Rosenblatt, R. A., Bovbjerg, R. R., Whelan, A., et al., “Tort Reform and the Obstetric

Access Crisis: The Case of the WAMI States, ” West J Med 154(6):693-699,1991.

Rosenblatt, R. A., and Detering, B., “Changing Patterns of Obstetric Practice in

Washington State: The Impact of Tort Reform, ” Fa.m Med 20(2):101-107, 1988.

Sager, M., Voeks, S., Drinka, P., et al., “Do the Elderly Sue Physicians?, ” Arch

Intern Med 150:1091-1093, 1990.

Shapiro, R. S., Simpson, D. E., Lawrence, S. L., et al., “A Survey of Sued and

Nonsued Physicians and Suing Patients, ” Arch Intern Med 149:2190-2196, 1989.

State of Michigan, Department of Social Semices, Medicaid Matters 3(2), 1989.

Texas Medical Association, 1988 Professional Liability Survey (unpublished data),

(Austin, TX: Texas Medical Association, undated).
29.

30.

31.

32.

33.

U.S. Congress, General Accounting OffIce, Medical MalDractice: Characteristics of

claims closed in 1984, GAO/HRD-87-55 (Washington, DC: U.S. Government

Printing Office, Apfi 1987).

U.S. Congress, OffIce of Technology Assessment, Healtlw Children Invest.in~ in the

=, OTA-H-345 (w=hington, DC: U.S. Government printing Office, February

1988).

U.S. Department of Health and Human Services, Health Cam Financing

Administration, Health Care Financim Promun Statistics: Medicare and Medicaid

Data Book. 1990 (Washington, DC: U.S. Government Printing Office, 1990).

Weisman, C. S., Morlock, L. L., Teitelbaum, M. A., et al., “Practice Changes in

Response to the Malpmctice Litigation Climate, ” Med C- 27(1):16-24, 1989.

Wise, P. H., Kotelchuck, M., Wilson, M. L., et al., “Racial and Socioeconomic

Disparities in Childhood Mortality in Boston, ” N End J Med 313(6):360-366, 1985. ‘

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