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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

More than half of physicians will be named in a lawsuit at some point in their career—whether or not they've made a medical error. While many physicians say their lawsuit was a terrible experience, only a tiny percentage of lawsuits that go to trial are decided against the physician. In Medscape's Malpractice Report 2019, more than 4300 physicians in over 29 specialties told us whether or not and why they were sued, what happened, and how the experience affected the way they practice medicine and relate to patients.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

More than half (59%) of respondents who have been sued (individually, with others, or both) have been named in at least one malpractice suit. Half were named along with other people. Fourteen percent were the only parties sued; in 2013, 9% were the only parties named in the lawsuit.

A 2016 benchmark survey from the American Medical Association reported that on average, 68 liability claims were filed per every 100 physicians.

Respondents could choose more than one answer.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Specialists (62%) are sued more often than primary care physicians (52%).

Among specialists who were sued, 14% were the only physicians named, while 50% were named as part of a group. Among primary care physicians, it was 12% and 42%, respectively.

Respondents could choose more than one answer.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Surgeons (general and specialized) are among the specialists more likely to be sued. "At least in relation to surgery and obstetrics, there is typically one specific event that happens on one day, and it's very easy and much neater to evaluate, as opposed to a 2-month hospital admission where you're trying to pinpoint when the standard of care was deviated from," says Michael T. Miller, Esq., attorney with Smith Haughey Rice & Roegge, Ann Arbor, Michigan.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Many factors influence the lawsuit climate in a state, including the relationship among physicians, lawmakers, and patients in that state; a state's culture (litigiousness of the population); ability to recruit doctors to the state; and state activity to reduce unreasonable litigation, among other factors. Degrees of tort reform and presence of malpractice caps vary by state.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Consistent with prior surveys, one third (33%) of physicians who had been sued reported failure to diagnose or delayed diagnosis as the reason, followed by complications from treatment or surgery (29%) and poor outcome or disease progression (26%). Failure to diagnose or delayed diagnosis was more prevalent in primary care (40%) than among specialists (30%).

"There was a broken needle left in the patient, which I removed 4 weeks later, and I was sued." -Allergist/immunologist

"The patient had a quarter-inch leg-length discrepancy after a total hip replacement; he claimed loss of consortium with his wife." -Orthopedist

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

For more than half the physicians, being sued came as a complete shock. In 2017, nearly 6 in 10 (58%) were very surprised at being sued; almost one third (29%) were somewhat surprised, and 13% weren't surprised at all. "There's a whole host of what you could call psychological factors that can contribute to the filing of a claim," says David S. Szabo, Esq., malpractice defense attorney with Locke Lord, LLP, Boston. "Those can involve when a patient perceives a breakdown in the doctor-patient relationship, or is pretty certain that there's been a mistake, and they feel like they've been shut out of productive conversation with their healthcare provider or providers."

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

The vast majority of physicians (83%) said that lawsuits against them were not warranted. Nonetheless, the ranks of physicians uncertain about this question has nearly doubled, from 6% in 2017 to 11% in 2019.

"The outcome was due to complications that could have been prevented by patient compliance with therapy." -Family physician

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

More than one quarter (29%) of physicians who were sued identified a trigger incident that set the suit in motion. In our 2017 report, 35% reported knowing about a trigger incident.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Physicians sacrifice substantial time physically preparing for their defense, which includes getting gathering records, meeting with the attorney, preparing for depositions, and participating in depositions and discussions (excluding time spent at trial). Forty-two percent of physicians spent more than 40 hours on these tasks.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

The length of the entire lawsuit process has remained steady over the past 6 years, with 1-2 years (40%) being the most common duration. For more than a one quarter of physicians (27%), the lawsuit process dragged out for 3-5 years.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

A very small percentage of lawsuits ever actually reach trial. One third (33%) of physicians who were sued said the lawsuit was settled before trial, whereas just 3% said the case went to trial and the judge or jury decided against them. These statistics have remained stable over the past 6 years. Eight percent of respondents said the case was still ongoing.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Physicians felt that most often, patients simply don't understand medicine, or recognize that sometimes the doctor can do everything right but there still won't be a good outcome. Many doctors also recognized that if there is a true medical error, patients are harmed and want to assign blame. (Respondents were allowed to choose more than one answer).

"The medicolegal climate promotes the notion that a bad outcome equals malpractice." -Anesthesiologist

"People have unrealistic expectations about what medical care can and can't do." -Cardiologist

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

The overwhelming majority of physicians responding to our survey carry malpractice insurance (94%). Years ago, some physicians would "go bare" (without malpractice insurance); however, that trend has since diminished.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Among respondents with malpractice insurance and who either settled or went to trial, most were either encouraged (39%) or required (20%) by their insurer to settle. In 2013, 35% were encouraged by their insurers and 15% were required, but 50% had such pressure from insurers. "Generally, if a physician senses that he or she is heading toward a difference of opinion with the insurer about settlement, they probably ought to invest a little time in having personal counsel look at the case," says Szabo.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Consistent with prior surveys, nearly half (49%) of physicians who were sued reported no changes after the ordeal. But some suffered lasting emotional and financial impact; 25% said they lost trust in patients and began treating them differently.

"The lawsuit was constantly on my mind. I feared seeing every patient, thinking this will be the next one to sue." -Gastroenterologist

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

There have been some huge malpractice payouts that got publicity; earlier this year, a Baltimore judge upheld a medical malpractice verdict of $205 million in favor of a woman whose daughter suffered a brain injury during birth. It's considered one of the largest malpractice verdicts in US history.

However, among physicians' cases that resulted in a settlement or verdict in the plaintiff's favor, most (38%) monetary awards were between $100,001 and $500,000.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Notably, more than half (58%) of physicians who had been sued thought the outcomes were fair.

"Yes; the patient had a devastating outcome and deserved compensation to handle living expenses and medical bills." -Pediatrician

"No; I should not have been sued in the first place." -Dermatologist

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

In retrospect, many physicians said they'd have done several things differently. As in prior years, leading changes included better chart documentation, not taking the patient in the first place, and ordering tests that would have "covered" them in a malpractice proceeding.

Primary care physicians (15%) were almost twice as likely as specialists (8%) to report that they would practice more defensive medicine if they got to do everything over.

"I would have reviewed the patient discharge instructions myself (they were done by another doctor)." -General surgeon

"I would not have agreed to provide the service in the emergency department." -Emergency medicine physician

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

A number of hospitals and large medical groups have programs in which physicians who have been involved in errors can speak with the patient or their family in a structured setting, and express apology and/or regret. Often, financial remuneration is also offered. Although some of those programs have reported success in averting a lawsuit, the majority of physicians seem to have less confidence in taking the apology route.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

With practices' growing reliance on using nurse practitioners and physician assistants to help meet patient demand, supervising physicians have expressed concerns that the trend would expose them to higher malpractice risk. As of now, 9% of respondents said that they have suffered such legal consequences owing to an action committed by an NP or PA.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Nearly half of respondents (48%) said that better communication and rapport with patients would help avert lawsuits. That's generally similar to the 53% who selected that option in 2017. (Respondents could choose more than one answer.)

Other choices involved systemic changes, the most popular of which were having a medical panel screen cases for merit (54%), caps on noneconomic damages (48%), and making the plaintiffs responsible for all attorney and legal fees if they lose (47%). One quarter of respondents to our survey said that the best way to discourage lawsuits is for physicians to make fewer errors.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

Fifty-six percent of physicians were dissatisfied with medical organizations' or state societies' work (or lack thereof) to reduce malpractice suits. In 2017, 66% said these organizations were not doing enough to address medical malpractice.

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

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Medscape Malpractice Report 2019

Leslie Kane, MA; Captions: Debra A. Shute | November 20, 2019 | Contributor Information

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