Is The Opposing Expert at Risk of (Another) Med Mal Claim?
In addressing an opposing expert’s opinions, it’s worth looking not only at the content of the opinion but also at the work and experience of the expert. Potentially relevant information includes the opposing expert’s own experience as a defendant in medical malpractice claims.
A recent JAMA Health Forum article explores the link between past and future medical malpractice claims. Its findings underscore the value not only of tracking opposing experts’ past medical malpractice experiences but also of staying alert to the potential of a claim being filed while your case is pending.
Are Medical Malpractice Cases Random Events?
“Many physicians believe that most medical malpractice claims are random events,” writes David A. Hyman and fellow researchers in a recently published JAMA Health Forum article titled “Association of Past and Future Paid Medical Malpractice Claims.” Doctors tend to assume that medical malpractice claims aren’t related - the fact that they’ve faced one in the past has nothing to do with whether they will face one in the future.
The researchers, which include lawyers, doctors, and public health experts, suspected differently. They investigated medical malpractice claim data associated with the over 880,000 licensed physicians in the United States between July 2018 and January 2023. Their goal: To determine if physicians were correct in assuming medical malpractice cases were random events - or to see if the presence of a past med mal claim predicted future claims.
Past Behavior Predicts Future Challenges in Medical Malpractice
Hiring managers have long believed that past performance on the job is a strong predictor of future performance. The same appears to hold true for physicians who face medical malpractice claims. Past behavior predicts future challenges.
The JAMA article authors found that “a single prior paid claim was associated with substantial, long-lived higher future claim risk” for physicians. In other words, a physician who had at least one past paid medical malpractice claim was at higher risk of facing another such claim in the future.
How much higher? The study found that:
- Physicians with no track record of past medical malpractice claims before July 2018 had a 3.3 percent chance of facing a medical malpractice claim between July 2018 and January 2023.
- Physicians with at least one paid medical malpractice claim before July 2018 had a 12.4 percent chance of facing a medical malpractice claim between July 2018 and January 2023.
The certainty of the researcher’s predictions declined over time. A medical malpractice claim over 10 years old had little predictive power for current or future claims. For more recent claims, however, a past claim strongly predicted the likelihood of another claim within the next five years.
The authors of the JAMA article indicate that improved education for physicians with paid medical malpractice claims may help to reduce the risk of a future claim within five years of a past one.
Tracking Opposing Experts’ Past - and Future - Med Mal Claims
The research indicates that medical malpractice claims are not random events. Rather, the fact that one happened in the recent past makes it more likely that another one will occur in the near future.
For this reason, medical malpractice attorneys can benefit from paying attention to medical malpractice claim records - both for their own experts and for opposing experts. Tools like Expert Radar can bring this information to light.
Expert Radar allows attorneys to understand the background and experience of opposing experts. Through Expert Radar, medical malpractice attorneys can see whether an opposing expert has been a defendant in a medical malpractice case before. They can also see how recently that case occurred. Attorneys can track opposing experts over the course of a case, receiving an alert if the expert faces a medical malpractice claim.
This information can prove invaluable to attorneys and their clients. When an opposing expert has only one medical malpractice claim on their record, they can attempt to explain it away as a random event - as many physicians are inclined to do.
Attorneys who track these “random events,” however, are poised to address a second medical malpractice claim the moment it appears. Suddenly, the excuse no longer works. The opposing expert isn’t a victim of bad luck but a practitioner with a track record of facing negligence allegations.
Even if a new medical malpractice claim doesn’t appear during the course of a case, Expert Radar’s information can contextualize the prior paid claim for attorneys and juries. Attorneys can explore whether the opposing expert has undertaken any of the additional education recommended by the JAMA article’s authors, for instance. They can also explore ways in which the paid past claim or claims might affect how the opposing expert understands the current case. Such information can prove extremely valuable in shaping jurors’ understanding of the available facts.
