Closed claim review from a single carrier in New York: The real costs of malpractice in surgery and factors that determine outcomes

Introduction: We postulated that a closed claim review of surgical cases would identify not only the quality of care elements but also factors that will predict successful legal outcomes. Methods: One hundred eighty-seven closed surgical cases from a single carrier, which insured physicians practicing in 4 university hospitals in New York State, were reviewed, cataloged, and analyzed. Results: Most suits occurred during midcareer and routine operations. Seventy-three percent of cases were won. The average payment and expenses per case were $220,846 ± $38,984 and $40,175 ± $4,204, respectively. Poor communication was identified in 24% of cases and was a predictor of a negative outcome (41% lost, P <.05), as was inadequate attending supervision (46% lost, P <.05). Expert reviews incriminated or exculpated physician defendants in 85 cases, which affected the outcome and cost. The quality of the physician defendant as a witness also affected the outcome. Conclusions: Most surgical malpractice claims are won. Although supervision, communication, and aggressive risk management are important, the use of quality experts and establishing credibility of the physician defendant are critical for successful legal outcome.