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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022
| Contributor Information
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Being named in a malpractice suit is one of the most challenging experiences of any physician's career. 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, psychiatrists share their experiences with lawsuits.
(Note: Some totals in this presentation do not equal 100% because of rounding.)
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Psychiatrists are sued less frequently than other specialists, with a little over a quarter reporting being sued, lower than the 51% of physician respondents overall who were sued. The rate is also considerably lower than the percentage of psychiatrists who reported being sued in Medscape's 2019 Psychiatry Malpractice Report (41%). Consistent with prior years, most respondents were named in the suit together with others, and only a small percentage reported being the only one named. (Respondents could choose more than one answer.)
"In 2021, a lot of courts were closed because of the pandemic, which might have led to a delay in filing lawsuits," says Richard L. Frierson, MD, professor of psychiatry, vice chair for education, and director of the forensic psychiatry fellowship in the Department of Neuropsychiatry and Behavioral Science at University of South Carolina School of Medicine.
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Among psychiatrists, the most common reasons were wrongful death, followed by poor outcome/disease progression, failure to treat/delayed treatment, and failure to diagnose. This is similar to survey findings in 2019, when wrongful death and poor outcome were the leading causes for lawsuits.
"It is worth noting that wrongful death remains the leading malpractice accusation in lawsuits against psychiatrists, and — combined with a desire to provide safe and effective care — should encourage practitioners to develop a standardized and formalized approach to assessing suicide risk," said Frierson, who is the coauthor of Health Practice and Liability in Psychiatry, to be published by Springer Publishing Company in early 2022.
"Because untoward events frequently happen at points of transition of care, ensuring appropriate follow-up for patients, especially when sending them to other providers or discharging them from a hospital, is crucial to reducing the risk of a bad outcome," Frierson said.
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
This year, about a quarter of PCPs and close to one fifth of specialists paid $5000-$9000 annually for coverage. By contrast, close to half of psychiatrists paid less than $5000, while about a third paid between $4000 and $9999.
Psychiatrists who had been named in a malpractice lawsuit reported that their malpractice premiums went up after the lawsuit, and several listed the increased premiums as one of the more stressful and long-lasting sequalae of having been sued. One psychiatrist wrote, "Insurance companies benefit, and insurance premiums go up, no matter what the outcome is of the lawsuit."
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
In 2021, most psychiatrists who were sued reported being very surprised by the lawsuit. In contrast, a little under half reported being very surprised in 2019. On the other hand, more psychiatrists in 2019 than in 2021 reported being "somewhat surprised" (42% vs 24%). The smallest percentage in both years reported not being surprised.
"I felt shocked because I in no way saw this coming," wrote one psychiatrist respondent.
Psychiatrists who were most surprised were those named in a suit for a patient they hadn't even seen or treated, often in hospital environments. "The lawsuit was unfair because I was completely uninvolved with the patient's treatment," wrote an employed psychiatrist. Others reported being sued long after a patient's death by family members who had been estranged from the patient. "Money-hungry families will lie for dollars," wrote one respondent.
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Sometimes it's possible to get a sense of which patient might initiate a lawsuit, but not always. A little over half of psychiatrists (55%) said they could have identified the patient, while 45% said they couldn't. These figures are comparable to those of overall physician respondents, of whom 54% said they could have identified the patient and 46% said they couldn't.
Some psychiatrist respondents retroactively recognized that the clues had been there. "Anger in patients leads to retaliation, so at all costs always listen to your patients' concerns and address them," wrote one respondent.
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to the overall sample of physician respondents, most psychiatrists resoundingly felt that the lawsuit was not warranted, although one tenth were unsure.
"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 Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to the overall physician sample, most psychiatrists reported that the lawsuit never went to trial. Among those who went to trial, 10% reported a verdict in the psychiatrist's favor and none reported a verdict in the plaintiff's favor.
" Far and away, the suits my clients face seem to get dismissed at some point in the process prior to trial. In fact, most don't even get settled in the plaintiff's favor, even for a relatively small amount," says attorney Dennis Hursh, of Physicians Agreement Health Law, a firm based in Pennsylvania.
"In malpractice cases against psychiatrists, most plaintiffs do not prevail," Frierson added.
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Almost one third of psychiatrists spent upward of 40 hours preparing for their defense, while only 3% didn't spend any time at all on such preparation.
In fact, the vast amount of time consumed by the lawsuit (eg, gathering and going over records, meeting with attorneys, depositions, and/or court appearances) was one of the most stressful components of being sued, according to psychiatrist respondents. "The lawsuit wasted my time, my energy, and my emotions," one respondent wrote. Another wrote, "I knew the suit would not prevail, but it was time-consuming."
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to what physicians in other specialties reported, the most common duration of a lawsuit among psychiatrists was 1-2 years. In 2019, almost a quarter (23%) of cases took between 3 and 5 years, whereas only 16% took that long in 2021. However, some psychiatrists reported a process that took longer than 5 years, with one describing the length of time (7 years) as the hardest part of the entire experience.
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to respondents in the overall survey of physicians, close to half of psychiatrists said they would not have done anything differently, followed by having better chart documentation and never taking on the patient in the first place.
"I felt hurt at the time, but I have learned a lot through that process and now I protect myself with thorough documentation," wrote one psychiatrist respondent. Another said, "If it isn't written in the chart, it didn't happen."
"Good documentation and clear treatment records are essential," Frierson said. "Typewritten notes are better than handwritten notes, especially if your handwriting is illegible; your notes should detail not only the patient's symptoms and mental status but also how the diagnosis was reached, why particular treatment modalities were chosen, and what medication dosages and amounts have been prescribed. Be sure to detail your clinical reasoning for using a medication off-label rather than in a more typical way."
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Although many respondents felt that the lawsuit itself and/or the allegations made against them were unfair, most psychiatrists believed that the outcome of their lawsuit was fair, up from 55% in 2019.
Some psychiatrists felt that the outcome was fair because the family deserved to be compensated. "I believe the family of the victim deserved compensation and this was the only way this could be done," wrote one respondent. Another wrote, "It was fair to the family but not to me because I was not responsible for what happened."
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
When plaintiffs did receive a monetary payment, in half of the cases, it was $100,000 or less, similar to figures reported by psychiatrists in 2019. In contrast, in other specialties, only 40% of respondents reported a monetary award of less than $100,000.
"Monetary rewards in psychiatry are often lower than in some other specialties, such as ob/gyn," Frierson said. He noted that although psychiatrists account for approximately 4% of all US active physicians, they account for only 1% of all paid malpractice claims in the United States.
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
At present, 39 states seek to reduce malpractice lawsuits by protecting some types of apologetic statements from admissibility in a claim, based on the underlying theory that patients are less likely to sue or more likely to settle claims already filed when they've received an apology. According to a recent Medscape article, however, this approach might be missing the mark.
"Empathy is always appropriate if a patient or family is suffering, but don't confuse empathy or sorrow with apology," advised Peter A. Kolbert, JD, senior vice president, Claim and Litigation Services, Healthcare Risk Advisors, a division of TDC 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."
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to physicians in other specialties and our 2019 findings, most psychiatrists did not feel that a lawsuit negatively affected their overall medical career, although they did describe having to inform potential employers or insurers that they had been sued.
"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," Walker said.
A psychiatrist respondent wrote, "At least one malpractice lawsuit is inevitable during the course of a medical career, so practice the best healthcare you can."
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Consistent with other specialists and physicians surveyed in 2021, most psychiatrist respondents (45%) did not report any change in themselves following the lawsuit. In 2019, over a quarter felt that it affected their trust in patients, while in 2021, only 14% felt that way.
Some comments we received in the survey:
"I would change nothing, as I know my practice was evidence-based."
"It made me less trusting of patients and their families and also reduced my risk tolerance for noncompliant patients."
"It made me wary of advising other practitioners."
"I initially felt incompetent and doubtful of my abilities, until I had reviewed the chart. Then I was angry at the attorney and family for filing the suit, even with the understanding of their grief."
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to other physicians, psychiatrists have not reported being sued for a COVID-19–related allegation. "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," said Peter A. Kolbert, JD, senior vice president, Claim and Litigation Services, Healthcare Risk Advisors, a division of TDC Group. "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."
Another reason psychiatrists have not experienced COVID-19–related lawsuits is that it is less likely that suits regarding prevention, diagnosis, misdiagnosis of COVID-19, or inappropriate treatment would land on a psychiatrist's doorstep.
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
According to the National Center for Health Workforce Analysis, the psychiatric NP and PA workforce is expected to grow by 67% by 2030. While only 4% of psychiatrists have been named thus far in a malpractice suit for an action committed by one of these clinicians, that number may well increase as the NP/PA workforce continues to expand.
"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."
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
So far, the vast majority of psychiatrists who see patients with COVID-19 are not concerned about being named in a malpractice suit because of an issue that arose during the pandemic. Nevertheless, one outcome of COVID that was particularly well suited for psychiatry was the expansion of telemedicine, enabling patients to continue treatment amid social-distancing regulations. During the pandemic, because of the public health emergency, many regulations were relaxed, such as those regarding HIPAA-compliant video platforms and conducting telemedicine with a patient in a state in which the physician is not licensed.
"Now that these regulations have been or are in the process of being reinstated, don't be caught off guard. Be sure that you are compliant with HIPAA and that you are not seeing patients across state lines if you are not licensed in a given state in which your patient is located, or you can be reported to the medical board as practicing without a license," Frierson said.
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
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Medscape Psychiatrist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 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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