Taryn Phaneuf May 31, 2016, 7:52am


With the highest rate of medical malpractice lawsuits paid out in 2015 compared to other states, it appears that Louisiana residents are the most likely to accuse a doctor, nurse, or dentist of negligence, according to data analyzed by a career information company.

In Louisiana, 44 medical malpractice lawsuits per 100,000 people resulted in either a settlement or judgment last year, topping a ranked list of 50 states.

Zippia, which gathered and analyzed to evaluate the “downside” to a medical career for college graduates, used numbers reported to the National Practitioner Data Bank. They added up the number of malpractice lawsuits paid out against medical practitioners in each state in 2015, and made comparisons.

Oklahoma followed Louisiana with a rate of 36 suits per 100,000 people. Delaware, Wyoming, and Tennessee round out the top five. Hawaii residents are least likely to sue for malpractice, with just about five lawsuits per 100,000 people, according to the report.

It’s not all that surprising, Ken Schnauder, executive director of the Louisiana Patient’s Compensation Fund (PCF), told the Louisiana Record. He said it’s nothing about medical malpractice in particular that warrants a lot of litigation.

According to its own data, the fund paid $93 million to resolve 288 medical malpractice claims two years ago. 

“Louisiana by its nature is very litigious. We have a lot of lawsuits — period,” he said. He suspects the rate of lawsuits in other liability and personal injury areas would also be high.

PCF is a state agency established in 1975 and tasked with keeping a trust fund that covers medical malpractice for private healthcare providers. The fund was set up to make sure people injured as a result of a doctor breaching the standards of care would be compensated. The fund holds more than $930 million, according to PCF’s latest annual report.

Providers who enroll in the fund — more than 20,000 — agree to pay surcharges that vary depending on their specialty. In 2015, obstetricians paid nearly $27,000 to enroll. A hospital paid nearly $3,000 per bed. The fund is completely sustained by those surcharges.

When a claim is brought against a hospital or a doctor and the defendant settles or a jury awards the plaintiff, PCF covers the cost after the first $100,000. Liability is capped at $500,000 unless the injured person has on-going medical expenses. The PCF covers future medical expenses without a limit.

Since 1975, the fund has paid 5,345 claims totaling $2.1 billion. It pays about $2 million per month toward the on-going medical expenses of 167 patients.

In 2014, the latest data available, PCF paid an average of about $323,000 per claim. 

The PCF tracks a lot of information, including how many claims are reviewed by a panel, how the panel rules, and how many claims the PCF pays. It gives some hints to the merit of claims.

For the most part, Schnauder believes malpractice claims in Louisiana that deserve compensation get it, while those that don't, don't. This aligns with a 2006 study by Harvard researchers. After reviewing a sample of 1,452 closed claims from five malpractice insurance firms. The study found that 72 percent of claims that didn't involve an error didn't get an award. And 73 percent of claims that involved an error were compensated.

Under state law, a person must take the first step of requesting a medical review panel — a three-member board that comes together to determine the merit of the claim. The claimant has to take that step within a year of the date the patient knew or should have known malpractice occurred. In 2015, a panel was requested 1,478 times. Schnauder estimated the PCF sees between 1,500 and 1,600 panels annually.

The number of review panel requests has fallen over the last 10 years, according to data. The number peaked in 2001 with a total of 2,954 requests. Then, in 2003, the PCF started requiring a filing fee. Since 2006, the number has stayed below 2,000.

The majority of claims from last year are still pending. Of those that were decided, the panel identified a breach in five claims. They judged there was not a breach in 24 claims. In more than 200 claims, there was no decision because the claim was withdrawn by the plaintiff or the provider settled before the panel issued an opinion.

“That’s how the process is supposed to work. You file a claim, you get a review panel, and they say whether there’s a breach in the standard of care,” Schnauder said. “There has to be a breach — not just an injury, an injury from the breach in the standard of care, which is a fairly significant thing to prove. A lot of (claims) disappear.”

Likewise, a provider may take steps to settle early when he or she knows the claim has merit.

While the panel is the first step, it’s not necessarily a gatekeeper. A claimant can file a lawsuit even if the panel determined there wasn’t a breach. PCF settles “a majority” of the lawsuits filed against it. In total, it resolves about 300 claims each year, Schnauder estimated.

“We’re a trust fund to pay injured claimants,” he said.

He estimated only a handful of claims go to trial in a year.

“The claims we settle would have been losses, most likely,” he said. “We only fight those cases that we have no choice because they want grossly more than it’s worth or a claim that we don’t think is owed to start with.”

Editor's Note: A previous version of this story mislabeled the data accessed from the National Practitioner Data Bank. The NPDB receives reports of actual payments resulting from medical malpractice lawsuits.

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