Medscape surveyed nearly 4000 primary care physicians and selected specialists to find out if and why they were sued; how the lawsuit affected their career and patient care decisions; and what these doctors suggest to reduce the number of lawsuits. The report shows the long-term effects, both emotional and financial, of malpractice suits on vulnerable doctors.

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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 others, no physicians are immune. A 2010 American Medical Association (AMA) survey reported that among all physicians, 61% had been sued by late career.^[1]

According to recent studies, obstetricians/gynecologists (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 general surgeons, and 79% of orthopedists have 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%.

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 patient suffering abnormal injuries. Failure to treat at 12% was in third place and far behind the first two. Less than 5% of respondents cited poor documentation or medication errors (both 4%) or failure to follow safety procedures or obtain informed consent (both 3%). Many physicians added verbal comments for this question, which are summarized on slide 26.

By age 54 years, 64% of the physicians who responded to this survey had experienced at least one malpractice suit over the course of their careers. After age 60 years, the percentage rose to about 80%. Although those who responded tended to be in specialties that had a high likelihood of being sued, an AMA analysis showed similar findings for all older physicians, with 60% over age 55 years experiencing a lawsuit.^[1] As one respondent in the Medscape survey wrote, "The older you get, the more you have to lose."

Nearly 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.

Over half (54%) of physicians who responded that 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. Nineteen percent were rarely bothered—unless something went wrong with the patient or there was a trigger event. Only 1% was 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 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."^[3]

Less than a quarter (24%) of physicians felt that medical organizations or societies were active and somewhat successful in reducing lawsuits. The rest felt that such groups were either helpless, pretty inactive, or just not doing anything at all.

It comes as little surprise that physicians—who are at some risk for being sued—are negative about plaintiff lawyers. About a third (32%) 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 (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 to good say about lawyers. One outlier said, however, "[The 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."

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. 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.^[4] Critics argue, however, that they place a greater burden on the poor. Nine states have found caps to be unconstitutional.^[5]

Nearly every major medical society has participated in the "Choosing Wisely" initiative and has made recommendations against common practices in their specialties that lead to overtesting or overtreatment, a major cost problem in the US healthcare system.^[6] Furthermore, they are encouraging patients to question these practices when talking to their physicians. Nevertheless, over a third (37%) of respondents to the Medscape survey believe that the Choosing Wisely initiative will lead to more lawsuits. Less than a quarter (24%) explicitly believe it will not. The rest are unsure. Among the verbal responses to this survey, no respondents 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 and not being criticized for not covering all the bases."

According to the results of this survey, 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.)

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 primary care physicians would launch such a case.

Of physicians who reported being sued, the great majority faced malpractice suits in office-based solo practices (70%) or single-specialty groups (64%). Of interest, the second lowest percentage (53%) reported were in office-based multispecialty groups. The settings least likely to produce lawsuits (47%) were outpatient clinics. Respondents were able to choose as many options as were relevant. A 2011 study published in JAMA reported that 48% of paid claims were for events in inpatient settings, 43% in outpatient setting, and 9% in both. Suits in the outpatient settings were more likely to be due to diagnostic issues and in the inpatient setting from surgical errors.^[7]

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."

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."

Forty percent 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."

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."

Only 20% of lawsuits against physicians who responded in this survey went to trial, and only 16% went as far as a verdict. Forty-one percent of the physicians who answered this question reported that their lawsuits were dismissed, and about a third (32%) reached a settlement before trial.

Among both men and women who reported being sued and whose trial reached a final verdict, only 3% of verdicts were in the plaintiff's favor. Male physicians had a slight edge (46%) over women (41%) in cases resolved in their favor 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).

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. Among verbal responses, a large number of those sued were minimally involved with their cases. Many physicians said they would be more careful. A number of others said they would be more aggressive in caring for their patients themselves and not relying on other staff or colleagues.

Over half (53%) of physicians who reported being sued thought that their outcome was fair. This varied somewhat by specialty, however. More than two thirds (68%) of oncologists and 56% of primary care physicians said that their outcome was fair compared with about half of the other professionals surveyed. This question did not address whether the outcome was in their favor or not.

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).^[7] 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). Neurosurgeons were next, followed by pathologists and ob/gyns, all with average claim payments between $300,000 and $400,000.^[2]

There was a wide variance among US regions in awards of over half million. Eighteen percent of physician respondents who lived 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.^[8]

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 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.

When asked about the nature of their lawsuit, physicians were given several suggested options (see slide 4), but they also provided hundreds of verbal responses to describe this experience, which are summarized here. Although obvious, it should be noted that most diagnostic cases occur in inpatient settings and those involving injuries in the hospital.

According to the choices given 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 worst experience of their lives (37%). Forty-five percent of men had these extreme responses (20% and 26%, respectively). (Note: values in chart are rounded.) 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. When asked to verbalize their experiences, physicians typically described feelings of betrayal by patients, humiliation, and disillusionment with the legal system. One physicians said, "The evils of human nature on display: greed, dishonesty, corruption. Clever lawyering trumps truth."

Less than half of respondents (45%) reported no long-term emotional or financial effects. It had a negative effect on trust for 30% of physicians, who said they would treat patients differently after that. Although a few physicians wrote that being sued was the reason they were leaving or thinking of leaving medicine, only 7% of respondents left their practice because of malpractice suits. 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 and, 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. It has produced widespread disillusionment among physicians concerning care of patients, the legal system, and medicine as a profession. 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.

The list above summarizes the key advice that physicians who responded to this survey provided verbally. In addition to good documentation and preparation, many physicians 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."

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