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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022
| Contributor Information
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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, internists and family medicine physicians share their experiences — the outcome of the lawsuit, what was hardest, and what they learned from going through the process.
(Note: Some totals in this presentation do not equal 100% due to rounding.)
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
PCPs reported fewer lawsuits this year compared with 2 years ago (pre-COVID), when 52% of 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.)
Additionally, many plaintiffs' attorneys have been reluctant to file lawsuits during this time, says attorney Charles Lohrfink, senior managing partner at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, New York. "American citizens are so grateful for the medical care that healthcare providers have received, where doctors and nurses have worked themselves to the bone trying to save the lives of patients with COVID, that plaintiff's attorneys are reluctant to bring cases right now. They don't want to deal with juries who feel grateful to the medical community for what it has done since COVID."
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to physicians overall, failure to diagnose/delayed diagnosis was the top reason for lawsuits by 2021 primary care respondents, consistent with PCP responses in 2019 and 2017.
"A patient with acute abdominal pain was sent for imaging but did not follow through with imaging because of a snowstorm. He had a ruptured retrocecal appendix and sued for delay of diagnosis."—Internist
"I saw the patient as an ED visit follow-up but otherwise was not part of the patient's regular healthcare team. The patient had a delayed diagnosis for cancer and sued anyone who was ever part of the healthcare team."—Family medicine physician
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
This year, about a quarter of PCPs and close to one fifth of specialists paid between $5000 and $9999 annually for malpractice coverage. Malpractice insurance premiums can differ depending on location, litigation climate, specialty, and the extent of coverage chosen. Physicians in Rhode Island, Pennsylvania, New York, and New Jersey pay the highest malpractice costs, while those in North Dakota pay the lowest, according to experts at Physicians Thrive, an advisory group that helps physicians manage their finances. A physician in New York can expect to pay at least five times more than one in California, Ohio, or Tennessee would pay for the same level of coverage.
Medscape's Malpractice Premium Report 2019 showed that 53% of internists and 46% of family physicians thought their premiums were "reasonable."
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to physicians overall and PCPs in previous years, most PCP respondents were surprised by the lawsuit. Several said that the shock of receiving the notice was the worst part of being sued. Others described being sued by a patient they had seen only once or who had a successful outcome.
"We operated and the patient had a wound infection which healed well, so I was surprised by the lawsuit."—Family medicine physician
"The patient was in a car accident and went to another hospital, not mine. I had only seen him once as an outpatient. He left the hospital and developed a DVT/PE and died. Everyone was named. I never saw him in the hospital nor was I involved in his care in the hospital. I never got any records from the hospital."—Internist
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to physicians overall, a little over half of PCPs said they were able to identify who would bring a suit.
Sometimes the clues are there but physicians don't notice or pay attention to them, says Lohrfink. "Certain doctors have said to me, 'I knew from the beginning that this patient was trouble. It's just the way the patient acted, how they always questioned anything I said, anything I said was never enough. If you feel that the patient might be litigious or you simply get an uncomfortable feeling, then refer the patient to a specialist or suggest a second opinion."
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to the overall sample of physician respondents in 2021 and consistent with responses given in previous years, most PCPs felt that the lawsuit was not warranted. "The claim was unwarranted. Although the outcome was not good, there was no causation/negligence," a family medicine physician wrote.
"I'm sure there is actual malpractice occurring out there in the world of medicine, because physicians are human and mistakes do occur; but in many clients I've had, some of these cases border on the ridiculous," said Paul Walker, a New York City–based malpractice attorney at Walker Medical Law, who represents physicians and other healthcare professionals.
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
A little over a third of PCPs who were sued said their case was settled before trial, which is similar to physicians overall and consistent with responses of PCPs in previous years.
"Most cases do not go to trial," said Lohrfink. "When a case goes to trial, our experience has been that we are successful on behalf of the physician much more often than not. In our experience, most cases are resolved by the jury in favor of the physician. The back story 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 his or her attorney weren't interested in what we believed to be a reasonable and fair resolution prior to trial."
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Over a third of PCPs spent upward of 40 hours preparing for their defense, similar to physician respondents overall, although the time frame was slightly less than what family physicians and internists reported in 2019. Several respondents complained about "total waste of valuable time" spent on the lawsuit, which took time away from other patients, as well as other involvements in their lives.
"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, and going over the questions asked at the deposition," says attorney Dennis Hursh, of Physicians Agreement Health Law, a firm based in Pennsylvania.
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
For most PCPs, the process took 1-2 years, similar to what was reported by physicians in general and PCPs in previous years. This year, about a quarter of PCPs reported that the process took 3-5 years, compared with 32% in 2017. Some said the case was prolonged due to motions and changes in trial dates, with delays that stretched out over a period of years. One wrote, "It went on for 10 years and wasted an enormous amount of time and money."
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to physician respondents in general, most PCPs said they would have done nothing differently, a slightly larger percentage than the 37% of PCPs who offered this response in 2017. In 2021, close to one fifth said they would have had better chart documentation, while a quarter chose this response in 2017.
"I make sure everything is documented clearly so patient noncompliance places the onus of proof on the patient and not the physician," wrote an internist. Another said, "Physicians need to document a history which is complete and provides clear medical reasoning. The common use of macros in an EMR makes these notes too generic to provide any memory aid during a deposition."
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Over half of PCPs thought the outcome of the lawsuit was fair, similar to the 61% of physicians overall. However, even though the outcome might have been fair to the patient, some respondents did not see the legal process as fair.
"If the patient is a victim of malpractice, they deserve compensation; but the system is so flawed that the process is unjust."—Internist
"I was very upset by how unfair the whole process was."—Family medicine physician
"Litigation stress is real, and stigma associated with 'being sued' is real. All create undue stress on already very stressful lives as physicians. I predict substandard care to be the norm in the USA with this unfair and unsustainable burden."—Family medicine physician
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Plaintiffs who sue physicians often get a monetary award, whether they win or settle. Like physician respondents overall, the most common award to a plaintiff reported by PCPs was up to $100,000, and the second most common was up to $500,000.
Awards to plaintiffs differ from state to state and can also differ widely even in different regions of the same state, says Peter A. Kolbert, JD, senior vice president, Claim and Litigation Services, Healthcare Risk Advisors, a division of TDC Group. For example, New York is "one of the more litigious states" and its awards "seem to be quite excessive."
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Like most physician respondents, and consistent with past surveys, most PCPs did not think that an apology would have made a difference in averting a lawsuit. However, some disagreed.
"I said 'I'm sorry' immediately, and at the child's funeral and in a card to the mother and at the end of the settlement. I was told that her ex-husband (the father of the child) filed the suit soon after the child's death, being told by a tertiary care hospital that not all was done for the child. The mother reportedly did not want the suit to proceed. I advocate that an apology is appropriate if heartfelt."—Family medicine physician
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to physicians in general and to the responses of PCPs in 2017, most PCPs in 2021 did not feel that the lawsuit negatively affected their overall medical career, although one respondent wrote, "I have lost job opportunities because of the lawsuits." Others complained that they have to explain the lawsuit to credentialing committees and insurers, and that it affected their malpractice premiums. One family medicine physician did not regard the negative impact on the career in terms of employment or insurance but rather in emotional terms. "The lawsuit negatively affected my overall career because I lost the pleasure in practicing medicine. I look at every patient as if they are a potential lawsuit waiting to happen."
Nevertheless, from a practical point of view, "one lawsuit, unless it's really egregious and horrific, is unlikely to make much of a difference in a physician's long-term career, but a series of lawsuits could affect the doctor's privileges at his or her hospital as well as future employment, and that's much more serious," says Walker.
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Close to half of PCPs say that nothing occurred as a result of the malpractice suit, slightly less than the 52% of physicians in general who chose this response.
Over a quarter of PCPs said they no longer trust patients and treat them differently, consistent with PCPs' responses in 2017. "Emotional trauma makes me less trustful of patients," wrote a family medicine physician. Other PCP respondents said they also lost trust in patients' families, in hospitals, in their colleagues — both physicians and nonphysicians — and in the medical system as a whole.
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
So far, PCPs have not reported being sued for a COVID-related allegation, but legal experts say 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 health providers failed to properly test the man and rendered improper care that led to his death.
"The US has seen an enormous number of COVID-19 infections and a terrible number of COVID-19 deaths, but we have not seen a lot of lawsuits specifically around COVID-19 so far," says Kolbert. "Part of the reason has to do with 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."
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Similar to physicians in general and to family medicine and internal medicine respondents in 2019, most PCPs have not been named in a malpractice suit for the action of an NP or PA. But that might change, as the role of NPs and PAs is "definitely expanding in both specialty and PCP offices," says Lohrfink.
"There really needs to be a true level of supervision and understanding on a daily basis of what the NP or PA has done with each patient, so the physician feels comfortable on a daily basis with what's going on with the person under his or her supervision. If you simply go over cases on a weekly or monthly basis, much is going to fall through the cracks and you're not truly providing the supervision that is required," Lohrfink adds.
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
Slightly more PCPs than physicians in general expressed concern about being sued for malpractice over a COVID-related issue that took place during the pandemic (17% vs 13%). Kolbert says he anticipates three types of COVID-related claims, some of which his group has already seen: failure to prevent or treat COVID itself; failure to prevent or treat comorbid conditions in COVID patients, including patients who are dealing with sequalae of COVID or are "long-haulers"; and non-COVID patients suing for malpractice, whose care was affected by the healthcare system's response to the pandemic.
Several PCP respondents thought that failure to diagnose post-COVID disease and failure to manage complications from the COVID infection might lead to COVID-related malpractice suits down the road. One thought that physicians' stress-related errors might have increased during the pandemic, especially in hospital settings, during the peak of COVID-19 caseloads, leading to potential lawsuits in the future.
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Medscape Primary Care Physician Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 31, 2022 | Contributor Information
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Batya Swift Yasgur, MA, LSW
Reporter, Medscape Business of Medicine
Disclosure: Batya Swift Yasgur, MA, LSW, has disclosed no relevant financial relationships.
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