1. Krupa C. Medical liability: By late career, 61% of doctors have been sued. American Medical News. August 16, 2010. Accessed November 15, 2015.
  2. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629-636. Accessed November 19, 2015.
  3. Crane M. Does 'defensive' medicine differ from 'careful' medicine? Medscape Business of Medicine. March 10, 2015. Accessed November 18, 2015.
  4. American College of Physicians. Medical Liability Reform: Innovative Solutions for a New Health Care System. February 2014. Accessed December 10, 2015.
  5. Mello MM, Kachalia A, Goodell S. Medical malpractice—update. The Synthesis Project. Robert Wood Johnson Foundation. April 2011. Accessed November 18, 2015.
  6. Physician Insurers Association of America. State enactments of selected health care liability reforms. April 29, 2013. Accessed May 14, 2014.
  7. ABIM Foundation. Choosing Wisely. Accessed November 19, 2015.
  8. Bishop TF, Ryan AM, Casalino LP. Paid malpractice claims for adverse events in inpatient and outpatient settings. JAMA. 2011;305:2427-2431.
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Contributor Information

Carol Peckham
Editorial Services
Art Science Code LLC
New York, New York

Disclosure: Carol Peckham has disclosed no relevant financial relationships.

Sarah Grisham
Freelance writer
Albuquerque, New Mexico

Disclosure: Sarah Grisham has disclosed no relevant financial relationships.


Close<< Medscape

Medscape Malpractice Report 2015: Why Primary Care Physicians Get Sued

Carol Peckham; Sarah Grisham  |  December 28, 2015

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Slide 1

Medscape surveyed nearly 4000 physicians, including primary care physicians (PCPs), to find out whether and why they were sued for malpractice; how any lawsuit affected their careers and patient-care decisions; and what these doctors suggest to avoid or reduce the number of lawsuits. The report also addresses long-term effects—emotional and financial—of malpractice suits on PCPs. Note that numbers in charts are rounded in this report, and so sums described in the text may not be consistent.

Slide 2

Across specialties, male physicians are more likely to be sued than female physicians, and indeed, in this survey, more male PCPs (52%) were sued than female PCPs (37%). Thirty-nine percent of men and 31% of women were named along with others in malpractice suits, whereas 12% of men and only 6% of women were the only parties sued.

Most physicians will face a lawsuit during their career, but PCPs are among the least frequently sued. According to recent studies, ob/gyns and surgeons are most likely to be sued among all physicians.[1,2] In the Medscape survey, 85% of ob/gyns, 83% of surgeons, and 79% of orthopedists have been sued, while only 46% of PCP respondents have been. In addition, at 23% and 26%, respectively, surgeons and orthopedists were most likely to be the only parties named in a suit, with PCPs coming in second from the bottom at 10%.

Slide 3

When PCP respondents were asked about the nature of lawsuits in which they were named, they could check as many options as were relevant. Considering the nature of PCPs' practice, it is not surprising that more than most of the lawsuits they had faced (44%) were for failure to diagnose. Some PCPs listed specific responses, which are listed in the next slide.

Slide 4

When asked about the nature of lawsuits filed against them, most frequently specified were cases of delayed diagnosis or treatment, reaction to or overdose from medication, injury during procedure, negligence, and wrongful death. In some cases, PCPs specified that patients had failed to seek needed follow-up treatment or referral.

Slide 5

By age 54 years, 56% of the PCPs who responded to this survey had experienced at least one malpractice suit. Nearly three quarters (71%) of those in the 65-69 age group said they have been sued, a larger percentage than their oldest peers (56%), with 47% of the former respondents named among other defendants and 23% having been the only party sued. Although PCPs tend to have a relatively low likelihood of being sued, an analysis by the American College of Physicians showed that all older physicians, with 60% over age 55 years, are likely to experience a lawsuit.[1] As one physician in the Medscape survey wrote, "The older you get, the more you have to lose."

Slide 6

Over one half (53%) of PCPs who said they had been named in a lawsuit admitted that the threat of another affects them either always—with every patient—or almost all the time. Only 20% were rarely bothered—unless something went wrong with the patient or there was a trigger event. Only 1% of PCP respondents who had been sued were never bothered by the possibility of lawsuit. "Doctors do win the vast majority of lawsuits, but they fear entering the world of the lawyer," says Marc Siegel, MD, an internist, author, professor of medicine at New York University Langone Medical Center, and 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."[3]

Slide 7

The American College of Physicians, among other medical societies, endorses federal tort reform legislation, including caps on damages for noneconomic harms, a fee schedule for contingency fees, and periodic payments of future damages.[4] Nevertheless, less than one quarter of PCPs (22%) felt that medical organizations or societies were active and somewhat successful in reducing lawsuits. Thirty-five percent of PCP respondents feel that such groups are either helpless to effect change or pretty inactive in their efforts, and 43% feel they are not even trying to help.

Slide 8

It comes as little surprise that PCPs—who are at particular risk for being sued—have negative feelings about plaintiff attorneys. Just under one third of respondents (31%) admitted that they "truly hate them." The best any of the respondents could say about lawyers was that they complain about them but don't really care (10%), that they are annoying but have a job to do (45%), or that they have no particular feelings about them (14%). Most physicians who submitted verbal comments had nothing good to say about lawyers. One outlier said, however, "[The medical malpractice] lawyer…helps to make the quality of medicine in this country what it is today (the best). Without them, doctors would go unchecked…. I've known some pretty criminal doctors over the years."

Slide 9

Respondents were able to choose multiple options for ways to discourage malpractice lawsuits. The great majority (81%) believes that such cases should be screened for merit by a medical panel before they can proceed. Fifty-nine percent believe in caps on damages for noneconomic harms. Fewer PCPs think that trying cases before a "health court" (48%) or banning lawyers from taking cases on contingency (38%) would discourage suits. Among PCPs who provided verbal responses, many suggested reforms to the legal system, including costs paid by the losing side of a malpractice lawsuit, lower costs and standards for countersuits when claims are found to be frivolous, and institution of no-fault insurance or payout funds for doctors. Respondents who suggested changes to medical practices to reduce suits suggested careful documentation and increased and improved provider-patient communication.

According to some research, placing caps on damages is the most cost-effective approach to malpractice reform, both in reducing awards and slowing the rise in malpractice insurance premiums.[5] Critics argue, however, that caps place a burden on the poor and can be unfair to deserving plaintiffs. Nine states have found caps to be unconstitutional.[6]

Slide 10

Nearly every major medical society has participated in the Choosing Wisely initiative and made recommendations against common practices in their specialties that lead to overtesting or overtreatment, major cost generators in the US healthcare system.[7] Furthermore, they encourage patients to question these practices when talking to their physicians. Nevertheless, more than one third (37%) of PCP respondents believe that the Choosing Wisely initiative will lead to more lawsuits. Less than a quarter (23%) explicitly believes it will not. The rest are unsure. Among the verbal responses to this survey, no physicians who had been sued said that they would test less, and many now test more.

In a Medscape article,[3] 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 [or be] criticized for not covering all the bases."

Slide 11

According to this survey, most PCPs have sympathy for colleagues who are sued, even in cases that involve actual errors. Sixty-four percent emphasized that doctors are only human and sometimes make mistakes. More than one half of respondents (57%) said that errors are rare and should not be exploited to give doctors a bad name. Still, 37% admitted that some doctors are negligent and incompetent. A relatively small but cynical 11% believe that plaintiffs are just after money. Many PCPs who gave supplemental verbal responses acknowledge that when a malpractice claim is reasonable and legitimate, there should be compensation for the plaintiff. Many others pointed to systemic problems and errors that must be addressed. Several stressed that some bad outcomes are unavoidable and that patients must take more responsibility for risks.

Slide 12

Male PCP respondents in this survey are more likely than their female peers to sue another doctor (19% vs 14%). A slightly smaller percentage of male (23%) than female (25%) respondents explicitly reported that they would not sue. The remaining respondents were unsure of what they would do.

Slide 13

Respondents were able to choose as many options as they found relevant for this question. Of PCP respondents who reported being sued for malpractice, the percentage of those who have faced malpractice suits was highest in office-based solo practices (56%), but not by much. Fifty-one percent of respondents practice in single-specialty groups, and 40% practice in either office-based multi-specialty groups or healthcare organizations. PCPs in hospitals (39%) and outpatient clinics (37%) were least likely to have been party to a suit.

A 2011 study published in JAMA reported that 48% of malpractice claims paid were for events in inpatient settings, 43% in outpatient settings, and 9% in both. Suits in the outpatient settings were more likely to be due to diagnostic issues, while surgical errors were more often the cause in the inpatient setting.[8]

Slide 14

Malpractice lawsuits came as an unexpected shock for the great majority of PCP respondents who had been sued. Male PCPs were only slightly more surprised by a suit than were their female counterparts (82% vs 80%). Women, however, were slightly more suspicious about an impending lawsuit than were men (18% vs 16%, respectively). Very few respondents were absolutely expecting to be sued (2% female and 1% male).

Slide 15

A third of PCP respondents spent more than 40 hours preparing for trial. These could be well-spent hours for physicians with claims against them. When asked if they had any advice to give their peers, several respondents to the Medscape survey stressed the importance of preparation for both deposition and trial. One physician said, "I was well prepared for my day in court and my testimony hastened a successful negotiation to a much, much, much smaller settlement."

Slide 16

A third of PCP respondents who were sued for malpractice spent more than 50 hours in court. Among PCPs who submitted verbal responses, one expressed frustration at the many delays and postponements defendants endure. Another asked rhetorically, "[Who's] watching the shop and taking care of your patients while you are in court?"

Slide 17

The lawsuit process was less than 1 year for 24% of the PCPs who reported being sued. For more than one third (37%), it lasted between 1 and 2 years, and 30% were involved for 3-5 years. Only 9% endured the process for more than 5 years. Among PCPs who submitted verbal comments, several expressed dismay at the time preparation and court proceedings took away from attending to patients and their practices. One noted that the "hours spent worrying were counterproductive and a major distraction."

Slide 18

About 16% of lawsuits against PCPs who responded in this survey went to trial, and 12% went as far as a verdict on the claim's merits. Forty-seven percent of the PCPs who answered this question reported that their lawsuits were dismissed, and nearly one third (30%) reached a settlement before trial. A PCP who commented verbally expressed frustration at "the prolonged period it took to eventually have the case dismissed."

Slide 19

Among PCPs who reported being sued for malpractice and whose trial ended in a verdict on the merits of the claim, only 2% were resolved in the plaintiff's favor. Thirty-six percent of cases were dismissed. Of these, 15% were dismissed by the court, and 21% were dropped by the plaintiff. Thirty-seven percent of cases were settled, almost always before trial (34%).

Slide 20

Nearly half (48%) of PCPs who reported being sued for malpractice said that they had adhered to the standard of care and would not have changed a thing. Twenty percent would have used better chart documentation, and 13% would have ordered more tests to protect themselves from claims. Among PCPs' verbal responses, several said that they would choose and question other involved medical professionals more carefully. Some said they would be more assertive or proactive with patients, their organizations, or the lawyers representing them. Others indicated that they would be more hesitant to take on risky patients and would refer more aggressively.

Slide 21

More than one half of both male and female PCPs who reported being sued thought the suits' outcomes were fair, although marginally fewer men (56%) than women (57%) believed the results were just. This question did not address whether the outcome was in respondents' favor or not.

Slide 22

More than one half (53%) of malpractice cases against responding PCPs resulted in no monetary award. Twenty-two percent of payouts were under $100,000; and 24% were greater. This is a slightly lower percentage than that of all physicians (29%) who responded to the Medscape survey. Only 3% of verdicts or settlements netted plaintiffs who sued PCPs over $1 million. 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).[8] A major study on payouts by specialty reported that the highest average amount (over $500,000) was against pediatricians, although they were among the least likely to be sued. Neurosurgeons were next, followed by pathologists and ob/gyns, all with average payouts between $300,000 and $400,000.[2]

Slide 23

There was some variance by US region in percentages of PCPs sued for malpractice. The highest numbers were in the Southeast (54%), Great Lakes (48%), and Southwest (47%) regions. The lowest rates were in the Northeast (37%) and West (38%). Such findings, however, do not necessarily coincide with regional award amounts. For example, a recent Forbes report found 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.[9]

Slide 24

When asked whether saying "I'm sorry" would have helped avoid or mitigate a malpractice claim, there was very little difference according to sex among PCP respondents who had been sued for malpractice, with 78% of men vs 79% of women answering, "no." Nineteen percent of men and 17% of women admitted to being unsure, and a miniscule 3% of men and 4% of women were certain that apologizing would have helped. Among the verbal comments to this question, most physicians, including PCPs, 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 other parties named and hadn't even met the plaintiff. Some respondents said that they believe greed was the motivating factor behind a suit. A few of those who reported that they had expressed remorse said that it had not made a difference.

Slide 25

When asked about the experience of being sued, one half (50%) of PCP respondents chose the most negative options: very bad (22%) or horrible—one of the worst experiences of their lives (27%). Just under one half (49%) were less upset and reported that it was just unpleasant and irritating (11%); upsetting, but they could function (35%); or not as bad as they thought (2%). PCPs who commented verbally often described depression, anxiety, and stress, in some cases with physical effects and suicidal thoughts. Many felt disillusioned and betrayed by patients, the system, and their colleagues and organizations, emphasizing that their ability to trust had been diminished. Worry over a suit's effects on respondents' professional reputations was often expressed. Several PCPs mentioned that more support would have helped and that suits' interference with family, personal, and work time compounded difficulties in coping they experienced.

A significant number of PCPs' verbal responses pointed toward attitudes and behaviors that had helped mitigate negative effects. Some said that they were humbled by the experience and chose to look upon it as a learning opportunity. A few said that they took care to focus on maintaining as best they could a healthy work-life balance, intentionally leaving worry over a lawsuit behind at least some of the time and relying on support networks. Others chose to not take malpractice suits personally and to view them as "a fact of life" or "part of the game."

Slide 26

Forty-four percent of PCP respondents reported no long-term emotional or financial effects following malpractice suits. Lawsuits had a negative effect on trust for 29% of respondents, who said that they treated patients differently afterward. A number of PCP respondents commented verbally that being sued was the reason they were leaving or thinking of leaving medicine, and 7% of respondents actually left. Few PCPs made changes to their malpractice coverage following a lawsuit, with 4% changing their insurer, and 3% purchasing more insurance.

Among PCPs adding verbal comments on what had changed for them following suits, the overwhelming effect was decreased trust—not only toward their patients but also, in some cases, their colleagues and organizations.

Slide 27

The list above summarizes the key advice that physicians provided verbally. In addition to good documentation and preparation, many emphasized the importance of telling the truth objectively and concisely.

Slide 28

Of all of the long-term effects expressed in this survey, perhaps the most disheartening was the negative impact that lawsuits have on the physician/patient relationship.

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