Malpractice and Medicine: Who Gets Sued and Why?

Carol Peckham. Malpractice and Medicine: Who Gets Sued and Why? Medscape. Dec 08,

The Scope of the Malpractice Problem

Medscape surveyed almost 4000 primary care physicians and selected specialists to find out if and why they were sued and how the lawsuit affected their career and patient care decisions. Fifty-nine percent of respondents to the Medscape survey have been named in at least one malpractice suit. Nearly half (47%) were among others named in the suit, and 12% were the only parties sued. While among the specialties surveyed, some were sued more than other, no physicians are immune. According to a 2010 American Medical Association (AMA) survey on all physicians, on average 42.2% are sued, with 22.4% sued twice or more, and by late career the risk increases to 61%.

Who Gets Sued? The Most and Least Vulnerable Specialties

According to recent studies, among all physicians, obstetricians/gynecologists (ob/gyns) and surgeons are most likely to be sued, psychiatrists and pediatricians are least likely to be sued, and primary care physicians fall somewhere in between. Of the specialties surveyed this year by Medscape, 85% of ob/gyns, 83% of general surgeons, and 79% of orthopedists reported having been sued. In addition, at 23% and 26%, respectively, general surgeons and orthopedists had the highest percentage among specialties surveyed of being the only parties named; ob/gyns came in third at 18%.

Do Men Get Sued More Than Women Do?

A 2015 analysis found that male doctors were nearly two and a half times more likely to have legal claims made against them than women doctors. These findings were similar across a number of countries. The current Medscape survey also reflected this disparity: two thirds (64%) of male respondents reported being sued compared with slightly less than half of women (49%). Women are also far less likely to be the only named defendant in a suit (8% vs 14%). Women are sued less than men regardless of specialty

Male physicians did have a slight edge (47%) over women (41%) in cases resolved in favor of the defendant either from dismissal or by verdict. Sex appeared to play no role in the percentage of cases that reached a settlement before or during trial (38% of men and 37% of women).

According to the question on the experience of being sued, men and women seemed to differ on the intensity of its negative effect. Fifty-seven percent of women chose the most negative options: very bad (20%) or horrible—the worse experience of their lives (37%). Forty-five percent of men had these extreme responses (20% and 26%, respectively). About half of men (51%) said that it was merely unpleasant and irritating or upsetting, but they could function. Fewer women (41%) chose these less extreme options. Four percent of men and 2% of women were either neutral or thought it wasn’t as bad as they thought it would be.

Age

A 2011 analysis in the New England Journal of Medicine projected that 36% of physicians in low-risk specialties and 88% of those in high-risk specialties would experience a first claim by age 45 years; this would increase to 75% of low-risk specialists and 99% of high-risk specialists by age 65 years. In the current Medscape survey, by age 54 years, 64% of the physicians who responded had experienced at least one malpractice suit over the course of their careers. After age 60 years, the percentage rose to about 80%. As one respondent wrote, “The older you get, the more you have to lose.”

Work Setting and Risk for Lawsuit

A JAMA study published in 2011 reported that 48% of paid claims were for events in inpatient settings, 43% in outpatient setting, and 9% in both. In this year’s Medscape survey, the largest percentages of those who faced lawsuits were in office-based solo practices (70%) or single-specialty groups (64%). Of interest, the second lowest percentage (53%) reported was from physicians in office-based multispecialty groups. Ownership may play a role in the higher risk in solo practices and single-specialty groups. In the 2010 AMA survey, physicians who had an ownership interest in a practice were at greater risk than those in other settings, with 47.5% of them reporting being sued compared with a third of those without ownership interest. In the Medscape survey, the settings least likely to produce lawsuits (47%) were outpatient clinics

Nature of the Lawsuits

When asked about the nature of their lawsuits, respondents could check as many options as were relevant. Tied in first place at 31% were suits related to a failure to diagnose and patients suffering abnormal injuries. In the 2011 JAMA study, lawsuits in the outpatient settings were more likely to be due to diagnostic issues and in the inpatient setting from surgical errors. Failure to treat at 12% was in third place and far behind the first two. Less than 5% cited poor documentation or medication errors (both 4%) or failure to follow safety procedures or obtain informed consent (both 3%).

Physicians also provided hundreds of verbal responses to describe this experience, which are summarized as follows:

• Injuries or death during surgery;
• Postoperative infection;
• Late diagnosis or misdiagnosis of cancer;
• Misdiagnosed cardiac emergency;
• Birth defects or fetal death;
• In-hospital infections;
• Falls in hospital room;
• Medication errors; and
• “Who knows?”

The Effects of a Lawsuit on a Physician’s Life

The emotional effect of being sued can be profound. Studies have reported a relationship to burnout, depression, and thoughts of suicide among physicians who are recently sued or charged with a complaint.

The Immediate Impact: A Surprise Attack

Most physicians (70%) were surprised when they were sued. Slightly more than a quarter (27%) suspected this threat. Only 3% absolutely expected to be sued. One physician wrote, “Surprising and upset to have the action filed after spending many hours caring for patient in the OR and SICU after very high risk surgery (tertiary care academic institution). During this time there was no indication the patient nor family was anything but very appreciative for his care.” Another said, “Such a shock to open that letter and see you are being sued. Like getting kicked in the gut.”

Long-term Emotional Effects of the Lawsuit

Only 1% of physicians who responded reported that they are never bothered by the threat of a lawsuit. Just 19% were rarely bothered—unless something went wrong with the patient or there was a trigger event. Over half (54%) admitted that the possibility of a lawsuit affects them either always—with every patient—or almost all the time.

Twenty-one percent of men and 32% of women added verbal responses on how they had changed. Some expressed the desire to improve professional behavior, notably documenting more and connecting with patients—not only their own but anyone whose case they are involved with. On the negative side, many physicians are now far less trustful; not only of patients but, in some case, of their colleagues. Some see fewer patients or none at all, and others no longer take charity patients, underserved populations, or complex cases. Few physicians wrote about financial consequences, although some described skyrocketing premiums and deductibles. One said that his practice lost $1 million, which they hadn’t fully recovered 6 years later. Many physicians talked about long-term anxiety, depression, and long-term suffering in general. One wrote, “[It] was over 20 years ago and still think about it often.”

Hundreds of physicians responded to the question on the worst part of being sued, being put on trial, or both. More than a few said that it was the worst experience of their lives, and many said that the effects lasted for years. The following list summarizes the experiences most discussed by those who commented verbally:

• Feeling helpless while being lied about by colleagues, patients, and lawyers;
• Implication of incompetence;
• Practice disruption and unreimbursed time away from patients;
• Being judged by nonpeers: jurors ignorant about medicine;
• Self-doubt;
• Exposure and humiliation;
• Loneliness and isolation; and
• Negative effects on marriage and family.

It is obvious at least from this survey that the current approach for dealing with medical errors is not only inefficient but is damaging to the healthcare system as a whole.

Changed Attitudes on Patients and the Profession

Malpractice suits have produced widespread disillusionment among physicians concerning care of patients, the legal system, and medicine as a profession. Thirty percent of physicians reported that they would treat patients differently because of a lawsuit. One advised cynically, “Treat all patients as potential cases for lawsuits.” Another physicians said, ” We spend an enormous time training staff how to document every event of patient contact. They are trained to think of any way a patient could sue us from the time they walk in the door. It’s ridiculous.” A few physicians wrote that being sued was the reason they were leaving or thinking of leaving medicine, with 7% of respondents leaving their practice because of malpractice suits.

Financial Impact

Over half (51%) of cases resulted in no award; 20% were under $100,000; and 29% were over this amount. Only 5% of verdicts or settlements awarded plaintiffs over a million dollars. In a 2011 JAMA study on paid claims, mean payment amounts were much higher in inpatient settings ($362,965) compared with outpatient settings ($290,111). A major study on claim payment by specialty reported that the highest average amount (over $500,000) was against pediatricians (although they were among the least likely to be sued than other physicians). Neurosurgeons were next, followed by pathologists and ob/gyns, all with average claim payments between $300,000 and $400,000.

Although there was only a 10% variance among all US regions of the percentages of physicians who reported being sued (55% in the West to 66% in the Southeast), wider differences were observed in awards of over half a million dollars. Eighteen percent of physician respondents in the Northeast reported awards over $500,000, followed by 15% in the Northwest and 14% in the Mid-Atlantic regions. Only 5% of physicians in the North Central reported these high awards, followed by 7% in the South Central, 8% in the West, and 9% in the Southeast. A recent Forbes report supported these results by finding Minnesota, Mississippi, and Texas to be among the states with the lowest malpractice awards and Rhode Island, New Jersey, and Oregon to be among the states with the highest payouts.

What Physicians Learned by Being Sued

Over half (51%) of physicians who reported being sued said that they used standard of care and would not have changed a thing. Nineteen percent would have used better documentation. Almost a tenth of respondents (9%) believed that they could have communicated more carefully, and 6% would have spent more time with patients or their families. On the flip side, 8% would have tested more aggressively to cover themselves, and 12% wouldn’t have taken on such patients. There were no large percentage differences between men and women in these responses.

Physician respondents gave these key points of advice for other doctors:

• Document, document, document;
• Prepare, prepare, prepare;
• Get good legal advice early and listen to it;
• Be sure that your actions are well thought out and your defense reasoned;
• Keep your cool and tell the truth;
• Share only what you can remember or document;
• You can never win at a deposition, but you can lose the case;
• Be patient, be likeable;
• Join a support group; and
• If your only concern is the welfare of your patients, it is unlikely you will be sued, and if you are sued, it is unlikely you will lose.

Many physicians also said that they would be more aggressive in caring for their patients themselves and not rely on other staff or colleagues. A number of respondents emphasized the importance of telling the truth. One doctor wrote, “It is a very bizarre situation. Each word that you say has to be measured and thought about, and it is a very strange way to have a conversation with someone.”

Defensive Medicine

Among the verbal responses to this survey, when talking about avoiding future lawsuits or long-term effects, no respondents who had been sued said that they would test less, and many now test more. In a Medscape article, Marc Siegel, MD, said, “It isn’t just fear of lawsuits that drives testing.” He added, “There’s a philosophy of practice that encourages defensive medicine. It’s part of the culture of not wanting to miss anything and not being criticized for not covering all the bases.”

Suing Other Physicians

Three quarters or more of physicians who answered this survey would not sue another doctor, even if the damages were caused by physician error. Some specialists were more likely to sue than others. About a quarter of oncologists, anesthesiologists, and radiologists would make a charge against a colleague, while only 15% of ob/gyns (the most commonly sued specialists) and 17% of PCPs would launch such a case.

Most physicians have sympathy for colleagues who are sued, even in cases that involve actual errors. Nearly two thirds said that errors were rare and should not be used to give doctors a bad name (62%) or that doctors are human and sometimes make mistakes (64%). Still, 41% admitted that some doctors were negligent and incompetent. (Respondents were allowed to choose as many options as they thought relevant.)

The Long Legal Process

Only 20% of lawsuits against physicians who responded in this survey went to trial, and only 16% went as far as a verdict. Forty percent of the physicians who answered this question reported that their lawsuits were dismissed, and about a third (32%) reached a settlement before trial. Doctors do win the vast majority of lawsuits, but they fear entering the world of the lawyer,” said Marc Siegel, MD, an internist, author, professor of medicine at NYU Langone Medical Center, and a senior Fox News medical contributor. “Courts are unpredictable, and the stress of being sued—with years of depositions, worry, and damage to your reputation—is a devastating experience, even if there’s no payment to the patient.”

Nevertheless, it comes as little surprise that most physicians expressed negativity about lawyers. About a third (32%) admitted that they “truly hate them.” The most positive choices selected about lawyers were that they complain about them but don’t really care (9%), that they are annoying but have a job to do (46%), or that they have no particular feelings about them (12%). Most of the physicians who had written comments had nothing good to say about lawyers.

Hours Spent on Defense Preparation

Over a third (36%) of respondents spent more than 40 hours preparing for trial. These could be the best-spent hours for physicians with claims against them. A number of physicians, when asked if they had any advice to give their peers, stressed the importance of preparation for both the deposition and trial. One physician advised, “State the facts clearly and have them straight from the beginning. Make sure you are prepared and reviewed all records carefully and be prepared for any questions. Review [them] with your attorney and malpractice insurance prior to any deposition.” Another warned, “Don’t underestimate the intent of the plaintiff attorney to win the case. Don’t underprepare for the trial.”

Hours Spent in Court and Trial-Related Meetings

More than 40% of physician respondents who were sued spent more than 50 hours in court. One physician complained, “Waste of my time. In court for 8 weeks. Couldn’t practice. I should have sued the patient for lost wages.” Another said, “Trial lasted 3 weeks—lost 12 pounds.”

Length of Entire Lawsuit Process

The lawsuit process was less than a year for only 19% of the physicians who reported being sued. For slightly more than a third (36%), it lasted between 1 and 2 years, and a third were involved for 3-5 years. Only 12% endured it for longer than 5 years. One physician whose case lasted over 3 years said that these were “years of agonizing about the potential for a catastrophic outcome, loss of license, practice, etc.” Another doctor described his longer process as “5 years of uncertainty.”

How Can This Dysfunctional System Be Fixed?

Respondents were able to choose multiple options for best ways to discourage lawsuits. The great majority (81%) believed that malpractice cases should be screened for merit by a medical panel before they can proceed. About half (48%) thought that one approach would be trying cases before a “health court.” Nearly two thirds (62%) believe in caps on noneconomic damages, and 37% want to ban lawyers from taking cases on contingency. Among verbal suggestions, unsurprisingly, many urged tort reform, but by far the most popular suggestion, particularly among male respondents, was to make the losing side pay. More women than men mentioned improved communication with patients as a way to discourage lawsuits.

Federal Initiatives

In 2010, the US Department of Health and Human Services issued $25 million in grants to test seven approaches for reforming the current liability system:

• Communication and resolution programs;
• Mandatory presuit notification;
• Apology laws;
• State-facilitated dispute resolution;
• Safe harbors;
• Judge-directed negotiation; and
• Administrative compensation systems.

A few of these are discussed below.

Safe harbors. Safe harbor programs would establish protection for physicians who use guidelines for making decisions.^[10] An Oregon analysis found that in claims where guidelines were applicable, injury might have been avoided in 30% of claims, and 32% would have been resolved more quickly had safe harbor been applied. Unfortunately, there are many limitations to the safe harbor approach, including the fact that guidelines target only a fraction of all claims and that specific patient cases are not always covered by guidelines. The Choosing Wisely campaign provides a precedent for the fair and unbiased compilation of guidelines. Nearly every major medical society has participated in this initiative and has constructed recommendations against common practices that lead to overtesting or overtreatment. Furthermore, Consumer Reports has released these guidelines to consumers, encouraging patients to question these practices when talking to their physicians. According to a national ABIM survey, 73% of physicians say that this is a very or somewhat serious problem. Nevertheless, over a third (37%) of respondents to the Medscape survey believe the Choosing Wisely initiative will lead to more lawsuits. Less than a quarter (24%) explicitly believe it will not. The rest are unsure.

Apology laws. Although programs employing apologies are being tested, when asked if saying “I’m sorry” would have helped, the answer was a resounding “No” (81%). Seventeen percent admitted to not knowing, and a miniscule 3% were certain it would help. Of interest, there were no significant differences in sex among those who responded. Among the verbal comments to this question, most physicians reported that they didn’t say they were sorry because it wasn’t their fault, that it would have made no difference, or that they were among many others named and hadn’t even met the plaintiff. More than a few said that greed was the motivating factor. Those who reported that they had expressed sorrow said that it would not have made a difference.

Judge-directed negotiation. In 2002, Douglas E. McKeon, a New York judge, collaborated with New York City Health and Hospitals Corp, the largest municipal healthcare organization in the country, to set up a process that focuses on early judge-directed discussions with the attorneys on the medical merits of their cases. Physicians and plaintiffs can be involved as well. It doesn’t necessarily preclude trials, but this approach is proving to cut legal fees and shorten many cases. In one of these programs set up in the Bronx, cases were completed at an average of 9 months compared with the usual 3 years. Physicians without direct responsibility in the case are weeded out within 6 months. This program requires no changes in the law, although it would require funding and training in order to scale it. Additional programs are currently underway.

Tort Reform

Most medical organizations and physicians support tort reform, and some states have instituted measures to reduce lawsuits with this approach, although a 2010 study concluded that even in states where such reforms have reduced cases, physicians still remained concerned about the threat of malpractice and used defensive medicine.

Employing caps. According to some research, placing caps is the most cost-effective approach in malpractice reform, both in reducing awards and slowing the rise in premiums. Critics argue, however, that they place a greater burden on the poor. Nine states have found caps to be unconstitutional. Texas placed a cap of $250,000 on noneconomic damages, which led to a significant drop in lawsuits and settlements. It is not clear yet whether such caps reduce defensive testing or hospital admission rates.

Ending malpractice litigation. Georgia has introduced legislation that would end malpractice litigation. A patient advocate would make an appeal to investigate the injury, and a panel of relevant medical experts would review the full record. If the panel concluded that the injury was avoidable, the case would be referred to a compensation committee. The patient wouldn’t need a lawyer, and the physicians wouldn’t need malpractice insurance. They would, however, pay an annual contribution to administer the program. Critics of this approach claim that the result would actually increase costs for the system and for physicians because more patients would be compensated than under the current system.

Summary

The current system of compensating patients for medical errors is not working and is leading to profound disillusionment among those in the medical profession. The Medscape survey revealed major discouragement with the system and a sense of powerlessness. Although most medical organizations are seeking ways to redress this problem, less than a quarter (24%) of physicians who responded to the survey felt that they were active or only somewhat successful in reducing lawsuits. They rest felt such groups were either helpless, pretty inactive, or just not doing anything at all. It is hoped that state and federal programs and legislation currently underway will find effective measures to reduce costs and protect the well-being of both the patient and the doctor.

On the plus side, evidence suggests that there is at least some improvement. Paid claims decreased from 18.6 per thousand physicians in 2002 to 9.9 in 2013. Of these claims, 96.6% were from settlements and only 3.4% from verdicts. (The Medscape survey showed a similar result; only 3% of verdicts were also settled in the plaintiff’s favor.) Still, declining claims and payments do not necessarily reflect a triumph of efforts to achieve true reform. There is no evidence that errors have declined; and, to date, no clear solutions have emerged that resolve the tensions these errors produce between physicians, patients, and lawyers.

When asked to verbalize their experiences, physicians who responded to the Medscape survey typically described feelings of betrayal by patients, humiliation, and disillusionment with the legal system. One physician said, “The evils of human nature on display: greed, dishonesty, corruption. Clever lawyering trumps truth.”