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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Lawsuits can take a heavy toll on a doctor's time, reputation, and emotional health, regardless of the outcome. About half of all physicians will be sued at least once during their career. In Medscape's Malpractice Report 2021, more than 4300 physicians in 29 specialties shared the reasons why they were sued, how the lawsuit worked out, and how the ordeal affected their practice and their relationship with patients.

(Note: Some totals in this presentation do not equal 100% due to rounding.)

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Just over half (51%) of respondents have been sued at least once.

"Many were named. I saw the patient early in pregnancy with typical morning sickness symptoms. The lawyers had to pick a day/visit when they claim the diagnosis could have been entertained so I was lumped in with the other defendants." – Family physician

"I missed the diagnosis. Not sure many others would have made the diagnosis, but I missed it." – Internist

"I was named because I had treated the patient somewhere along the line, but my actions were not the subject of the suit." – Physical medicine & rehabilitation physician

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Fewer lawsuits took place this year than 2 years ago (pre-COVID), when 62% of specialists reported being sued and 52% of primary care physicians (PCPs) said they had faced a claim. "COVID certainly has something to do with it. People haven't been able to get out. This includes getting out to have medical procedures done and getting out to file lawsuits. Like a lot of other businesses, there was a slowdown during COVID," says Michael Moroney, JD, an attorney with Flynn Watts LLC, Parsippany, New Jersey.

(Respondents could choose more than one answer.)

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Failure to diagnose and treatment complications were the leading reasons for lawsuits, which is consistent with results of prior surveys.

"A patient with abdominal pain was initially treated by me. After 24 hours, I got a call back that he wasn't any better. I sent him to the ER where he was diagnosed with appendicitis. Had an appendectomy without complications. He sued me regardless." – Internist

"A first-time patient came in complaining of diarrhea both during the night and day. I gave him some medication and told him to return in 2 weeks for further testing if symptoms had not resolved. He did not return in over 1 year. He saw another physician 17 times during that year, for the same complaint, then found out he had colon cancer and sued me for failure to diagnose." – Family physician

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Surgeons (general and specialized) are among the specialists more likely to be sued. "Because there's not usually a long-term, ongoing relationship between a surgeon and a patient, and the fact that these physicians take on — across the board — high-risk procedures, it places surgeons at higher risk of litigation compared with other specialties," says J. Richard Moore, JD, attorney with Bleeke Dillon Crandall, Indianapolis, Indiana.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Indiana was among the leading states for malpractice lawsuits, which is up from 2019. Another highly litigious state this year, New York, also moved up from its rank in 2019.

The prevalence of lawsuits in any given state depends on many factors, including the extent of tort reforms, the state's litigiousness culture, the number of physicians in the state, patient demographics, and legislators' efforts to reduce frivolous litigation.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

How much do you pay annually for malpractice insurance premiums?

The cost of liability insurance premiums varies widely. Malpractice insurance premiums can differ depending on location, litigation climate, specialty, and the extent of coverage chosen.

According to a recent report from the American Medical Association, liability insurance premiums are rising. The analysis, based on premium increases that predates COVID-19, predicts the rising trend of insurance costs will continue.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

"I was surprised by the suit because I was still caring for the patient, and the parents had never said anything. I was actually served the papers of the suit in the morning, and the parent brought the patient in for routine trach care that afternoon." – Otolaryngologist

"I was very shocked. I had been very close to their family for over 20 years. I had never been sued before. It was a real slap in the face. It also affected my family in that they saw how hurt and disappointed I was, plus all the crapola I had to deal with because this lawsuit dragged on for over a year." – Surgeon

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Although many wish they could know in advance which patients would probably sue, there's no magic formula.

"Every now and then, a patient may conduct himself or herself in a way that makes you think, This patient is going to get a lawyer and file suit. But it can be unpredictable. Oftentimes, a physician will be sued in a situation in which there is a bad outcome. The physician may feel they did their best, but the patient may not understand that and sue. I think physicians would like to think there is some predictability in who files suit, but the reality is that you never know," says Moore.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

"Our verdict data shows that 80%-85% of malpractice decisions are in favor of the doctor. There are cases where mistakes are made unintentionally, but still a mistake, nonetheless. There are some lawsuits that are warranted, but many times, it has more to do with the economic motivations of plaintiffs' law firms and a bad outcome," says Catherine Flynn, JD, an attorney with Flynn Watts LLC, Parsippany, New Jersey.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Few claims ever reach trial. One third (33%) of physicians who were sued said the lawsuit was settled before trial, whereas just 2% said the case went to trial and the judge or jury decided for the plaintiff. These statistics have remained stable over the past 8 years.

A landmark study in the Archives of Internal Medicine (now known as JAMA Internal Medicine) found that lawsuit dismissal rates are highest among internists and medicine-based subspecialists, and lowest among pathologists. The rate of claims that reach a trial verdict was low across all specialties, ranging from 2% among anesthesiologists to 7% among pathologists.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Physicians spend a significant amount of time preparing for their defense. "Medical malpractice litigation is time-consuming. Defense attorneys need to be educated on the medical issues; expert witnesses need to be selected. A physician defendant will need to be involved in most aspects of the case," says Michael J. Sacopulos, JD, an attorney with Sacopulos, Johnson & Sacopulos, Terre Haute, Indiana.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Length of the lawsuit process has remained steady over the past 8 years, with 1-2 years (40%) being the most common duration.

Physicians may soon encounter an even longer lawsuit process. "There is a significant backlog now because of COVID," says Sacopulos. "Trial schedules have been postponed around the country. The judicial system is working through a backlog of all sorts of cases at the moment."

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

If they could go back in time, physicians who were sued had plenty of things they would do differently. Better chart documentation is consistently named as something they'd improve upon.

"Many malpractice cases rise and fall on the charting. The flip side is when doctors go back and change the record after a claim is filed. Plaintiffs' attorneys can use this against the doctor. It can taint the rest of the case and prevent the jurors from believing that the doctor is telling the truth," says Moroney.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Most physicians who were surveyed believed the outcome of their lawsuit was fair.

"Yes, although this was a rare condition, there were at least two chances for me to catch it, and I failed." – Internist

"No, the settlement wasn't my idea. I believe I would have prevailed in court." – Surgeon

"Yes, the family got some money to help with their loss." – Family physician

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

Plaintiffs who sue physicians frequently receive a financial award, whether they win or settle. To date, one of the largest malpractice payments ever awarded was a $205 million verdict against Baltimore-based Johns Hopkins Bayview Medical Center in 2019. The award resulted from a lawsuit against the medical center by a family whose baby suffered a brain injury there during her birth.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

A growing number of hospitals and healthcare institutions have implemented apology and disclosure programs that allow doctors to express apology and/or regret in a structured setting, often with financial remuneration offered to the patient or family. In addition, more than 30 states have passed apology laws that protect some forms of apology from being admissible in court. However, recent data show that these laws are not helping to reduce malpractice claims.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

While lawsuits no doubt leave an imprint, slightly under one third of physicians feel that the lawsuit negatively affected their overall career. "In our experience, one case or one claim in the course of an otherwise unblemished career is going to have basically zero impact on the career of most physicians. If you practice medicine for 20 or 30 years, and you have two or three claims, that's really not likely to affect you overall unless the claim is so significant there's a referral to the medical licensing board or something along those lines," says Moore.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

More than half of physicians who were sued reported that there were no attitude or career changes after the experience, which is consistent with results of prior surveys. However, some physicians reported losing trust in patients and treating them differently afterward, and others left the practice setting altogether.

"It interrupted my practice and family activities. It conditioned me to be more defensive in my practice and view every patient as a potential adversary." – Rheumatologist

"I subsequently left practice and went to work for a life insurance company." – Internist

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

So far, physicians have not reported being sued for a COVID-related allegation, but legal experts say that time will tell. In some areas, plaintiffs' attorneys are advertising their services for coronavirus-related claims and suggesting what type of negligence could be grounds for such a suit. In June 2021, a Tennessee woman sued a family physician after her husband's death from COVID-19, claiming that healthcare providers failed to properly test the man and rendered improper care that led to his death.

"We have not seen a lot of Covid-related litigation thus far, probably due to the immunity granted by governors through executive orders for Covid-related treatment. But that doesn't mean that we don't have some very astute plaintiffs' attorneys who, I'm sure, are sorting through things. They have a 2-year statute of limitations. If they can, they will," says Flynn.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

"I think we could see claims related to the over-treatment of COVID resulting in poorer outcomes — due to the initial lack of knowledge on how to treat." – Anesthesiologist

"I could see claims involving death as the outcome in patients with risk factors, who practiced risky behavior, or refused a COVID vaccine. The family wants someone to pay for their loss." – Internist

"There may be suits due to delays in care due to inadequate space in the ED or hospital." – Emergency physician

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

More than 270,000 nurse practitioners (NPs) and over 139,688 physician assistants (PAs) currently practice in the United States. However, claims that involve physicians' failure to supervise NPs and PAs are not too common. "Traditionally, this has not been an area of heavy litigation. As PAs are more widely used, I would anticipate seeing more of these cases in the future. It is still something to be concerned with, particularly for physicians overseeing multiple PAs," Sacopulos says.

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

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Medscape Malpractice Report 2021

Alicia Gallegos | November 19, 2021 | Contributor Information

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