Medscape Ob/Gyn Malpractice Report 2021
A malpractice lawsuit is one of the most challenging experiences a physician will ever go through. Medscape's Malpractice Report 2021 surveyed more than 4300 physicians in 29 specialties who described why they were sued, how the lawsuit worked out, and the impact of their ordeal on their practice and their relationship with patients. In this slideshow, ob/gyns share their experiences — what was hardest, what sustained them, sources of resilience, what might have prevented the lawsuit, and what they learned going through the process.
(Note: Some totals in this presentation do not equal 100% due to rounding.)
Medscape Ob/Gyn Malpractice Report 2021
Ob/gyns ranked fifth among physicians when it came to lawsuits, with 79% of ob/gyn respondents reporting a suit compared with 51% of physicians overall. Interestingly, in 2019, ob/gyns ranked fourth among the specialties, with 83% reporting having been named in a lawsuit. And in Medscape's 2017 Ob/Gyn Malpractice Report, 85% reported having been named in a lawsuit.
(Respondents could choose more than one answer.)
"The number of brain-damaged baby cases we see has decreased and is not anywhere near the number we used to see because plaintiff attorneys are recognizing and only taking what they term to be 'good' cases, which means either a catastrophic outcome or an outcome they can use to fit their theory of a catastrophic outcome, or when there's clearly been a departure from standards of care," says attorney Charles Lohrfink, senior managing partner at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, New York.
Medscape Ob/Gyn Malpractice Report 2021
Complications from treatment/surgery was the most common reason for the lawsuit among ob/gyns in more than a third of respondents, which is notably different from responses of physicians overall, in which failure to diagnose/delayed diagnosis was the most common reason for lawsuits (31%). This hasn't changed since 2017, when complications from treatment/surgery was also the number one reason for the lawsuit among ob/gyns (34%). Among ob/gyns in 2021, poor outcome/disease progression was the second most common reason, similar to responses in 2017.
"The most common ob/gyn cases we are seeing right now are the failure to diagnose breast cancer," says Lohrfink. "That overlaps with radiology, but the ob/gyn is pulled into a case where there's a claim that the radiology missed a tumor on mammography and the ob/gyn either failed to palpate it soon enough, or the ob/gyn said, 'Let's watch this' and the cancer progressed."
Medscape Ob/Gyn Malpractice Report 2021
This year, 52% of specialists reported paying under $20,000 per year in malpractice insurance premiums and 11% reported paying $30,000 per year or more. By contrast, only 27% of ob/gyns reported a premium of under $20,000, while one third paid $30,000 per year or more. Medscape's Malpractice Premium 2019 report showed that ob/gyns paid the highest malpractice premiums of any specialty ($46,000 per year).
"The reason ob/gyns pay so much more in premiums is because of the catastrophic potential of delivering an abnormal baby, and the high sums of money paid to the plaintiff when that happens," says Lohrfink. "In fact, during the past 15 years or so, we have seen many ob/gyns dropping obstetrics and doing only gynecology because the premiums for gynecology alone are a small fraction of the premiums they were paying when obstetrics was included."
Medscape Ob/Gyn Malpractice Report 2021
Similar to other physicians surveyed, most ob/gyns were either "very" or "somewhat" surprised by the lawsuit. One ob/gyn respondent wrote, "It was upsetting because I felt I had a good relationship with the patient, had provided her with the best medical care and extensive emotional support, and the suit came as a complete surprise."
Many surprises come not from lawsuits brought by established patients but by patients whose care the ob/gyn wasn't involved with or in which errors occurred that were unrelated to the ob/gyn's care. "What I was sued for had nothing to do with the care rendered," a respondent wrote. "I never saw the patient and was never called about the patient," said another. "I didn't know her, and she didn't know me."
Medscape Ob/Gyn Malpractice Report 2021
A little over half of ob/gyns said that they could have identified the patient, with figures comparable to those among overall physician respondents.
Often, the clues are there but the physician doesn't recognize them or doesn't pay sufficient attention to them, says Lohrfink. "Use your good judgment and if you have a sense that a patient is litigious and the situation isn't emergent, refer the patient elsewhere or suggest she get a second opinion. I can't tell you how many times I've heard doctors say, 'I knew from the beginning that this patient was trouble.' Clues might be that the patient keeps questioning everything you say in ways that you feel whatever you say just isn't enough, or simply if you get an uncomfortable feeling about the patient."
Medscape Ob/Gyn Malpractice Report 2021
Over three quarters of ob/gyns felt that the lawsuit was not warranted, although some were unsure. In 2017, 85% of ob/gyns thought the lawsuit was not warranted and 6% were unsure. In 2021, among physicians as a whole, 83% regarded the lawsuit as unwarranted and 11% were unsure.
"The lawsuit was unwarranted. The patient knew exactly what she should have done, and this was emphasized over the 8 years she was my patient. There was a complete lack of responsibility by the patient, money-grubbing attorneys, and malpractice companies, and too much power by the Medical Board to decide the future of good doctors. Not any accountability by any of them about how their actions affected my life," wrote one respondent.
Medscape Ob/Gyn Malpractice Report 2021
The largest percentage of ob/gyn lawsuits were settled before trial — higher than the 33% of before-trial settlements reported by physicians in general in 2021 and consistent with the 37% reported by ob/gyns in Medscape's 2017 Ob/Gyn Malpractice Report. More ob/gyns than physicians overall reported a verdict in the plaintiff's favor when the case did go to trial — a number unchanged from the 4% reported by ob/gyns in 2017.
Nevertheless, even when the case went to trial, the judge or jury was more likely to return a verdict in favor of the ob/gyn, both in 2021 and in 2017 (8% and 10%, respectively). "When a case goes to trial, our experience has been that we are successful on behalf of the physician much more often than not," says Lohrfink. "In our experience, most cases are resolved by the jury in favor of the physician. The backstory is that if we truly feel that a jury could perceive merit to the plaintiff's case, we'll make an honest effort to resolve the case fairly ahead of time. We would only go to trial if we feel we have a strong case or if the plaintiff and her attorney weren't interested in what we believed to be a reasonable and fair resolution prior to trial."
Medscape Ob/Gyn Malpractice Report 2021
Preparing for a lawsuit is very time-consuming, with upward of 40 hours as the most common amount of time spent by ob/gyns. More ob/gyns than physicians in general spent more than 40 hours preparing for their defense (43% vs 35%). In 2017, almost half of ob/gyn respondents spent more than 40 hours preparing their defense.
"One of the stressful parts of a malpractice suit for the physician is the large amount of time required in preparing the defense — time spent meeting with the attorney, reviewing records, going over the questions asked at the deposition," says attorney Dennis Hursh of Physician Agreements Health Law, a firm based in Pennsylvania.
Medscape Ob/Gyn Malpractice Report 2021
The highest proportion of ob/gyns reported that the lawsuit took 1-2 years, similar to the 40% of general physician respondents. However, one third of ob/gyns endured a process that lasted 3-5 years, and some even longer than that. In 2017, 37% of ob/gyns reported the process went on for 1-2 years and 39% said it lasted 3-5 years. Some regarded the time and energy in defending themselves and the length of the legal process as the worst part of being sued.
"Some of these ob/gyn cases take many years because there can be numerous different defendants involved in the patient's care," says Lohrfink. "It is much more complex and will take a lot more input and involvement from the physician client than a one-on-one case, which is simpler. In our experience, most malpractices cases that proceed to trial take 2-5 weeks in the courtroom from the time jury selection commences until the time the jury renders a verdict. We encourage our physician clients to be present in the courtroom each and every day, if at all possible, during the trial to show the jury their level of concern and that they are fully invested in their defense."
Medscape Ob/Gyn Malpractice Report 2021
Medscape Ob/Gyn Malpractice Report 2021
Most ob/gyns said they would have done nothing differently, compared with 43% of physicians in general. "My care was appropriate. The lawsuit was absurd," wrote an ob/gyn respondent.
However, some said they would have made different treatment choices, especially regarding cesareans. "I would not have been so considerate of a patient's demand to avoid a C-section," wrote a respondent. Another said, "I would have encouraged the patient to have a C-section sooner." One respondent said she would have recommended a C-section at 39 weeks, even though she knows the patient would have "adamantly refused."
Medscape Ob/Gyn Malpractice Report 2021
Similar to physicians in general, most ob/gyns respondents felt that the outcome of the lawsuit was fair. "There is no money that can make right a damaged baby who ultimately died. In our legal system, the outcome was as fair as it gets," wrote a respondent. Another said, "Even though I don't believe I caused the infant's problems, the amount of settlement only went for the infant's welfare." An ob/gyn added, "Negligence needs to be fairly compensated, but the definition of 'fair' is up for debate."
However, even if the patient deserved recompense, this did not mean that ob/gyns feel that the outcome was fair to the physician. "The insurance company wanted to settle even though I was not responsible for the outcome," a respondent wrote. Another said, "No malpractice was committed; it was just a bad outcome." Nevertheless, even in that situation, one ob/gyn was at peace with the outcome and felt it was fair. "The patient suffered a known complication of surgery. She was warned. But the complications were so horrible that my insurance company felt it safer to settle. I was okay with the lawsuit outcome."
Medscape Ob/Gyn Malpractice Report 2021
Among physicians in general, 2% reported that the plaintiff received no monetary payment, but among ob/gyns, all plaintiffs received some type of award, with 15% receiving over $1 million (in contrast to 8% among physicians in general). In 2017, close to one fifth of plaintiffs received an award of over $1 million.
"Ob/gyn carries significant financial exposure with lawsuits," says Peter A. Kolbert, JD, senior vice president, Claim and Litigation Services, Healthcare Risk Advisors, a division of TDC Group. "If there is a child born with any type of neurologic issue, for example, that child might require a lifetime of care, with expenses on the parents' part and the child's own future lifetime earning ability adversely affected. The payouts to plaintiffs when this happens can be astronomical."
Medscape Ob/Gyn Malpractice Report 2021
Most ob/gyns felt that apologizing to the patient would not have averted a lawsuit. In 2017, 87% said no, and 12% weren't sure. One respondent advised fellow ob/gyns, "Do not avoid a patient/family with a bad outcome. Talk to them; tell them that you are sorry this happened and that you will do everything you reasonably can to help them. Be careful not to admit to medical error. You may be at fault, but under stressful circumstances, you may believe you are at fault but not really be."
"Empathy is always appropriate if a patient or family is suffering, but don't confuse empathy or sorrow with apology," advised Peter Kolbert, JD, senior vice president, Claims and Litigation Management, Healthcare Risk Advisors, a division of The Doctors Company Group. "We can feel sorry and sad, but always be mindful that apologies can be misconstrued and should be reserved only for those situations when you didn't meet the standards you set for yourself, which are rare."
Medscape Ob/Gyn Malpractice Report 2021
Most ob/gyn respondents did not feel that the lawsuit ultimately affected their overall medical career in a negative way — just a little less than among physicians in general (67% vs 71%). In 2017, 56% said no and 44% said yes. Many respondents complained about the ongoing requirement to report the lawsuit — even if it was dismissed — to credentialing committees for decades after the lawsuit. "I have had to explain the situation multiple times when getting licenses in other states, malpractice insurance, etc, even when we are talking 20 years after the only lawsuit I have ever had."
Nevertheless, "in today's litigious society, a single lawsuit or even two aren't necessarily looked at askance by credentialing committees, especially if you're in a specialty in which lawsuits are common," says Hursh. "But payers will look at the multimillion-dollar judgment, or a pattern of repeated lawsuits."
Medscape Ob/Gyn Malpractice Report 2021
Similar to the overall population of physicians surveyed in 2021, a little over half of ob/gyns said that nothing changed for them after the lawsuit, whereas approximately one quarter said that they trust patients less. "I have become more leery of patients," wrote a respondent. "I am more aware of potentially adversarial interactions," said another. Interestingly, another respondent described the opposite effect: "I continue to provide the best care for my patients and I enjoy my patients."
Among ob/gyns, 9% left their practice setting — slightly more than 7% among physicians in general. Some reported moving to a different state. A respondent wrote, "I moved my practice 40 miles north to escape an untenable situation. My malpractice insurance dropped by over 90%, and I haven't been sued or deposed in 16 years. I will never practice in the same state again." Another respondent advised fellow ob/gyns to "learn what the tort laws are in each of the states and only practice in a state where there is protection against unwarranted suits."
Medscape Ob/Gyn Malpractice Report 2021
No ob/gyns were named in a lawsuit for a COVID-related allegation. "The US has seen an enormous number of COVID-19 infections and a terrible of COVID-19 deaths, but we have not seen a lot of lawsuits specifically around COVID-19 so far," said Kolbert. "Part of the reason is state-based qualified immunities from claims dealing with the prevention, diagnosis, or treatment of COVID-19. These immunities have raised the bar for someone to bring a claim, because they recognize that the standard of care, in terms of COVID-19 is evolving on a daily basis."
"Additionally," said Lohrfink, "COVID has served as a deterrent to filing lawsuits because American citizens are so grateful to healthcare providers and the medical community who have worked themselves to the bone to save lives of patients during COVID. Plaintiff's attorneys are very mindful of that. They don't want to deal with juries who feel grateful for what the medical community has done during COVID."
Medscape Ob/Gyn Malpractice Report 2021
One tenth of ob/gyns were named in a lawsuit for an action committed by an NP or PA. "Abnormal labwork missed by NP and led to the sequence of events," wrote one respondent. Others described fetal abnormalities that were missed by the NP or PA.
However, the role of these clinicians is expanding in ob/gyn and women's health, according to a 2021 report issued by the US Department of Health and Human Services; the supply of women's health NPs and PA is projected to grow by 89% and 56% respectively by 2030. According to Medscape's 2019 Ob/Gyn Compensation Report, ob/gyn practices use PAs 23% less and NPs 57% more, compared with physicians overall.
"It is very important for physicians to understand the insurance products that they have and the nature of their coverage for physician extenders in their office," Kolbert said. "Rules regarding supervision of midlevel providers vary from state to state, and you need to understand the obligations set forth by your particular state for supervising midlevel providers. And if you share the office with a PA or NP you are not in practice with, be sure that it is clear to patients that you are separate entities. Proper signage showing which is the office of Dr Smith and which is the office of NP or PA Jones is a simple starting point. And make sure billing records and charts are kept separate as well."
Medscape Ob/Gyn Malpractice Report 2021
Almost all respondents were not concerned about being sued for malpractice over a COVID-related issue that occurred during the pandemic. "For a lawsuit stemming directly from COVID treatment to succeed, a plaintiff would have to prove recklessness or gross negligence, not just departure from the standard of care, because essentially there was no standard of care — it was evolving all the time. This is why COVID-related immunities against lawsuits were in place for healthcare professionals," says Evan Lyman, associate attorney at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, New York. However, "we still don't know the impact of COVID on lawsuits going forward, and the landscape is still rapidly evolving."
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