Medscape Malpractice Report:
Did They Deserve to Get Sued?

Leslie Kane, MA

July 24, 2013

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Being sued is an upsetting event at best and a terrible, life-changing experience at worst. Close to 1400 physicians who were sued for medical malpractice told us why they were sued, what happened, how the trial went, what they learned, and how it changed the way they practice medicine.

Slide 1.

About 40% of survey respondents have been named in a lawsuit. Thirty-one percent of responding physicians were one of many parties named; another 9% were the only physician named.

"There are two main reasons that several people are named in a malpractice lawsuit," says Sam Rosenberg, Esq., medical malpractice defense attorney with Reiseman Rosenberg Jacobs & Heller, Morristown, New Jersey. "If you sue only one doctor, you're limited by that doctor's coverage. By naming several parties and the hospital, you try to maximize the coverage available."

Also, "you may have several theories of negligence against the healthcare providers. Some theories may not pan out. The plaintiff attorney wants to have lots of irons in the fire."

Slide 2.

The vast majority of doctors had no inkling that they would be sued.

While 41% of those sued said that there had been a trigger event that they suspected might create a lawsuit, 59% said that there was no trigger event.

"Either the physician didn't know that anything was wrong, or they did notice something but didn't expect the patient to sue," says Rosenberg. "There are always situations on a daily basis in a doctor's office where a patient is not happy. A doctor might suspect that the patient had an injury but did not expect that a lawsuit would be filed."

Slide 3.

Failure to diagnose was the chief reason given for a lawsuit. Other causes comprised a variety of situations, some legitimate and some clearly opportunistic.

One physician cited "a medical error with an unexpected unfavorable outcome."

Another said, "The patient missed a follow-up appointment, the system didn't contact him about the malignant diagnosis, he didn't get treatment, and the rest is history."

Other responses:

"The patient had side effects from his treatment. These were known side effects but most patients never believe it will happen to them."

"There was a fetal demise at 19 weeks. Prior to trial, it became apparent that the mother (patient) was using cocaine."

"The patient had a complication after a laparoscopy. She then sued, saying that she no longer could eat big meals and enjoy steaks. She neglected to reveal that between the time of my laparoscopy and the suit, she had a gastric bypass and stomach stapling."

Slide 4.

The majority of cases are concluded before an actual trial takes place. When there is a trial and the case is decided by a jury, a much larger percentage of cases are decided in favor of the physician rather than the plaintiff.

"Usually, if a case goes to trial and is settled before the verdict, it's because someone did badly on the witness stand or someone did really well," says Rosenberg. "The key is that something happened at the trial that neither side anticipated at pretrial discovery."

Slide 5.

Doctors are wise enough to know when an error or oversight was indeed their fault, and many have a sense of when justice has been done. Even some physicians who had a verdict rendered against them recognized when fair was fair.

Others felt that justice was not done and believed that a sympathetic plaintiff swayed the jury to overlook or misinterpret medical facts.

Some responses:

"Though the outcome was not my fault, it was my responsibility. The patients needed to sue to get financial relief for the burden of caring for their infant. I understood that."

"I felt that I saved the patient's life and then got sued."

"It was good to see justice in action. The jurors took the case seriously and came up with a fair decision. I would have felt the same even if the case had gone against me."

Slide 6.

The specialties reporting the most lawsuits were internal medicine (15%), family medicine (13%), ob/gyn (9%), psychiatry (8%), gastroenterology (6%), cardiology (6%), and pediatrics (5%).

"There are more primary care physicians than specialty practitioners, so you get higher numbers there," says Rosenberg. "A lot of the ob/gyn suits have to do with obstetric delivery issues because there are so many people having babies, and that specialty tends to have big, high-volume practices."

Totals in all charts may not add up to 100% due to rounding.

Slide 7.

While 41% of physicians found the lawsuit experience distressing, they stayed on course with their practices and their lives. Yet almost a quarter (23%) considered the lawsuit a terrible experience. Often the events surrounding the lawsuit were equally difficult.

"The man who sued had his children leave phone messages for me and the other doctors involved, saying that I was a murderer. And I was not even the child's doctor!"

"The lawsuit nearly caused a divorce. My wife thought I should settle to avoid the misery of the prolonged proceedings—in no small measure, prolonged by the plaintiff's attorney who fed my wife unrealistic expectations and fed me with undue harassment, seeking punitive action."

"It soured me on obstetrics, which I quit as soon as possible thereafter."

"It sure makes a very kind person mean for a while!"

Slide 8.

About a quarter (24%) of the physicians sued were dismissed prior to depositions, but nearly a half of the cases went to depositions (45%), while 21% went all the way to trial.

"If a doctor is dismissed from the suit in the first few months, usually this is the result of a failure by the plaintiff to obtain an affidavit of merit or the doctor's ability to secure an affidavit of noninvolvement," says Rosenberg. "If it goes to depositions and is then dismissed, it's likely that the plaintiff's attorney identified things from the depositions that are not in the medical record that changed the landscape of the case. Conversely, you have cases where a party was deposed and made such a bad witness that the carrier says, 'Let's talk to the plaintiff now because this case is only going to get worse.'"

Slide 9.

Those who minimize the impact of lawsuits on doctors often say that very few lawsuits actually go to trial. But that doesn't mean that doctors don't spend significant time preparing and defending themselves.

More than one quarter of physicians sued (28%) spend more than 40 hours before the trial itself. The time spent includes getting records together, meeting with the attorney, preparing for depositions, and participating in depositions and discussions (but not including time spent at trial).

"This shows that more doctors take this seriously and put the time into preparing," says Rosenberg. "A lot of them get actively involved, especially if they have a partner who can watch the practice while they're at trial or are preparing for it. This can become a problem for solo doctors."

Slide 10.

Attending one's own trial, being questioned on the stand, and attending meetings related to the trial are grueling and nerve-wracking. Once the case went to trial, the majority of trials were completed in less than two weeks, while about one third took longer.

Still, 58% of physicians whose cases went to trial spent more than 20 hours at trial. Combining that with the amount of time spent preparing for the trial, it's a huge amount of time, especially when the lawsuit is one that the physician feels should not have been brought.

Slide 11.

The largest proportion of cases (61%) took up to 2 years to conclude. That's a long time to be dealing with anxiety, frustration, and worries about the outcome of the lawsuit.

About another quarter of cases (28%) lasted 3-5 years, while 11% dragged on for more than 5 years.

Slide 12.

Sometimes malpractice awards are based on a legitimate assessment of life-changing injuries; sometimes the award seems to be based more on the jury's emotions.

Said one respondent, "My lawyer said she had never seen such a dirty trial. The amount of the settlement was outrageous by any standard; the jury said they didn't understand the medicine."

"With some of these bigger verdicts," says Rosenberg, "you have a lot of lawsuits by people on the younger side, with big incomes and injuries that are serious. Also, plaintiff attorneys are much more selective in terms of cases they'll try. It's not worth it for them to go to court for less serious injuries."

Slide 13.

Although the current prevailing attitude is that saying "I'm sorry" is helpful in expressing sympathy to patients and also in averting lawsuits, the overwhelming majority of physician respondents who were sued said that it would not have made a difference.

"It was not my fault; my name was in the chart so the plaintiff's lawyer sued me also. It's ridiculous that this is allowed."

"I believe I showed too much 'sorry' and concern for the patient's wife and she took it for guilt."

"I did apologize to the patient when I found out that she suffered an adverse event. It made no difference even though she said not to worry and that it was not my fault."

"I felt like saying, 'Kiss my butt.'"

Says attorney Rosenberg, "We all like to think that if you do the right thing and are apologetic, it will make someone think twice before suing, but the reality is that this typically doesn't happen. If someone is injured and aggrieved and they think someone is responsible, they are probably going to sue."

Slide 14.

On a fairly positive note, most physicians were satisfied with their defense representation. Still, 7% were "disappointed by how the attorney handled me and my case," and 1% felt that the attorney ruined the case.

In most malpractice defense cases, the defense attorney is provided by the insurer.

"These results show that there is typically good rapport between members of the bar and their clients," says Rosenberg. "If a doctor isn't happy with his attorney, it's often not a question of doubting competence but is a personality issue."

Slide 15.

To settle or not settle is a huge issue. Sometimes the insurer believes that the case has little chance of winning and is not worth continuing to fight, yet the physician wants to keep fighting because he (rightly) feels that his reputation is at stake. The doctor wants to be exonerated rather than always having to explain why the case settled, which may carry a subtly implied admission of guilt.

Some policies have a required-to-settle clause, in which the decision is not up to the physician. It may be worth checking your policy to see whether you have such a clause in place.

Slide 16.

Malpractice premiums are expensive, but doctors who have been sued are happy that they have it. In virtually all cases in which there is a payout to the plaintiff, the insurer pays the full amount. Very rarely will a doctor have to dip into his or her own pocket to make a payment.

Said one survey respondent, "My case settled for $20,000. One half of that was directly out of my pocket because I had seen the client initially when I was insured by another company and also during the time with the new company."

Says Rosenberg, "Under the National Practitioner Data Bank policies, if a settlement is paid out of personal funds (not those of a professional corporation or other business entity) as opposed to being paid by an insurance company, it's not a reportable event to the data bank. So, on occasion, a physician will prefer to write a check personally so that it doesn't get reported to the NPDB."

Note: Percentages may not add up to 100% due to rounding.

Slide 17.

Although it may seem to the doctor being sued that every eye is on him or her and everyone is talking about the lawsuit, that doesn't actually seem to be the case. In our survey respondents' experience, most patients didn't even know about the lawsuit, and the remainder were supportive.

This could differ depending on whether the doctor lives in a small town or rural area where all of the residents know what's going on, or if it's a high-profile case with lots of publicity. Typically, however, a malpractice lawsuit has little impact on a doctor's current practice.

That's not to say that if patients are searching for a new doctor and read about a lawsuit online (if the news has reached the Internet), it might make them think twice about choosing that doctor. But there seems to be little impact if a physician has a good relationship with his or her patient base.

Slide 18.

Doctors generally seemed to have sympathy for other physicians who were sued. They know how capricious some lawsuits are and how awful it is to be sued. As a result, most were supportive or showed no change in their attitude and behavior toward the physician who was sued.

One respondent wrote, "Several of us were named in a suit, and we were told not to communicate with each other about it. That created a strain in our relations, especially when I was dropped from the suit but the other doctors were still in it."

Another replied, "I think every doctor looks at others who were sued and says, 'That could be me.'"

Slide 19.

For the majority of physicians, the lawsuit experience was very bad, but then it was over and they went on with their lives.

However, about a third (29%) experienced ongoing effects of the lawsuit; it changed the way they think and act. Many said that the trust they had in the doctor-patient relationship disappeared, and now patients are regarded to some degree as potential adversaries.

Some comments:

"It was emotionally traumatic; our team had had good interactions with the patient and family."

"It hangs over your head for years, causing you to second-guess everything you do."

"I still have to list the suit on all licensing applications even though it was thrown out."

"Just being named in a lawsuit is like gossip; accusations are considered true even if the case is dismissed. It leaves an emotional stain."

*Percentages total more than 100% because respondents could choose more than one answer.

Slide 20.

Emotions came through loud and clear as hundreds of doctors described what they considered the worst part of the trial.

"The plaintiff's attorney lied. He received many reprimands from the bench. Our attorney objected 10 times during his closing summation. The plaintiff's attorney cried in front of the jury and accused us of neglecting and abusing the child. I wanted to respond to him but could not."

"The lawyers lie and twist things. They made me out to be a villain—which probably worked out in my favor because when the jury got to meet me, they realized that was not the case."

"The judge fell asleep during the trial."

Slide 21.

Additional advice:

"Do not succumb to attempted emotional upset caused by an aggressive plaintiff attorney."

"Document well and document even cursory conversations with patients. My documentation was thorough and was cause for the dismissal."

"It is perfectly legitimate to order every test that you feel is acceptable to prevent another suit."

"Don't assume ANYTHING!! If it hurts, CAT scan it. If it hurts between the nose and the toes, consider it a heart attack and stress-test everyone from 9 to 90!"

"Get rid of irate/demanding patients ASAP. I fire them if they are rude/irate to my staff for silly things, as it's just a matter of time before they will treat me the same. Get rid of high risk, noncompliant patients."

Slide 22.

Survey methodology:

Total respondents: 3480 US physicians across 25 specialty areas
Fieldwork conducted by Medscape, June 7-28, 2013
Data collected via third-party online survey collection site

Slide 23.
Slide 24.

Contributor Information

Leslie Kane, MA
Editorial Director, Medscape Business of Medicine

References

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