Medscape Surgeon 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, surgeons share their experiences — what was hardest, what sustained them, 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 Surgeon Malpractice Report 2021
Over three quarters of all surgeon respondents reported being named in a lawsuit, compared with 51% of physicians overall. Plastic surgeons and general surgeons were sued the most often (at 83% each), according to Medscape's 2021 findings, and specialized surgery ranked sixth (at 74%). In 2019, general surgery ranked first, at 85%, whereas specialized surgery ranked fifth, at 80%. (Respondents could choose more than one answer.)
"Because there's not usually a long-term, ongoing relationship between a surgeon and a patient, the fact that these surgeons take on — across the board — high-risk procedures, it places surgeons at higher risk for litigation compared with other specialties," says J. Richard Moore, JD, attorney with Bleeke Dillon Crandall in Indianapolis, Indiana.
Medscape Surgeon Malpractice Report 2021
Complications from treatment/surgery was the most common reason for the lawsuit among surgeons in over half of respondents, which is notably different from responses of physicians overall, for whom failure to diagnose/delayed diagnosis was the most frequent reason for lawsuits (31%). Whereas poor outcome/disease progression was the second most common reason for lawsuits among surgeons, it was the third most common reason among physicians in general.
A recent analysis of over 2500 malpractice claims against surgeons, conducted by the medical liability insurer Coverys, found that 78% of surgical claims were related to practitioner performance during the surgery itself, with almost one third of injuries from the surgery regarded as "permanent [and] significant" or worse.
Medscape Surgeon Malpractice Report 2021
This year, one third of surgeons paid $30,000 or more in malpractice insurance premiums, compared with 4% of primary care physicians and 11% of specialists. In 2019, Medscape's Malpractice Premium Report found that specialized surgeons paid the second highest malpractice insurance among all other physicians, second only to ob/gyns.
Malpractice insurance premiums can differ depending on location, litigation climate, specialty, and the extent of coverage chosen. A recent report from the American Medical Association showed that surgeons in Orange County, California, paid an annual premium of $41,775 in 2020, whereas surgeons in Miami-Dade County, Florida, paid $205,380. Moreover, according to the report, liability insurance premiums are rising. The analysis, based on premium increases that predate COVID-19, predicts that the rising trend of insurance costs will continue.
Medscape Surgeon Malpractice Report 2021
Similar to other physicians surveyed, most surgeons were either "very" or "somewhat" surprised by the lawsuit, although a fifth were not at all surprised — a higher proportion than the 14% of physicians in general who were not surprised.
Often, the surprises came after a successful surgery. Sometimes, the surgeon was sued because of the action of another professional — for example, a patient was unhappy with the choice of anesthesia and sued the surgeon as well as the anesthesiologist. One surgeon said that there had been a delay in diagnosis by other practitioners. "I was named with the rest, even though I was called in late and saved the day." Another surgeon was surprised to be named when the patient developed bacterial endocarditis 4 years after the surgery.
Medscape Surgeon Malpractice Report 2021
Over half of surgeons said that they could have identified the patient — a figure similar to that for overall physician respondents.
"If you get a sense that the patient might become litigious, refer the patient out or suggest the patient get another opinion," says attorney Charles Lohrfink, senior managing partner at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, New York. "I also advise surgeons to 'stay in their lane' — meaning, if you are a general surgeon and the surgery the patient needs isn't routine or within your area of expertise (perhaps you do it once or twice a year) — then refer the patient to a specialized surgeon who performs these procedures all the time. Do what you're best at and refer out those cases that may be at the periphery of your level of expertise."
Medscape Surgeon Malpractice Report 2021
Most surgeons felt that the lawsuit was not warranted, although some were unsure, with figures similar to those for other physicians surveyed by Medscape. "Sometimes lawsuits are warranted, but other times complications happen, even when we do everything perfectly," a respondent 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, a firm that represents physicians and other healthcare professionals.
Medscape Surgeon Malpractice Report 2021
For the largest proportion of surgeons (39%), their lawsuits were settled before trial — a higher figure than that reported by physicians in general (33%) in 2021.
"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 his or her attorney weren't interested in what we believed to be a reasonable and fair resolution prior to trial."
Medscape Surgeon 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 surgeons. Close to half of surgeons spent more than 40 hours preparing for their defense, compared with 35% of physicians in general — a figure that hasn't changed much since 2015. Respondents complained that the number of hours consumed by the lawsuit detracted from time they could devote to their families and to other patients who needed them.
"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 Physician Agreements Health Law, a firm based in Pennsylvania.
Medscape Surgeon Malpractice Report 2021
Most surgeons reported that the lawsuit took 1-2 years, similar to the 40% of general physician respondents who experienced the same timeframe. However, over one third of surgeons endured a process that lasted 3-5 years, and some lawsuits lasted even longer than that. Some surgeons regarded the time and energy in defending themselves and the length of the legal process to be the worst parts of being sued.
"Surgery 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 Surgeon Malpractice Report 2021
Medscape Surgeon Malpractice Report 2021
Most surgeons said they would have done nothing differently, but the percentage was smaller than the 43% seen among physicians in general. One tenth said they would have spent more time with the patient and their family.
"If they are not truly informed, properly assessed, ready physically and emotionally for their surgical procedure, fully heard, or willing and able to comply with preoperative and postoperative instructions, the final outcome can fall short of the patient's expectations. Practices and practitioners involved in the discipline and art of surgery must be devoted to patient-centered care because no amount of surgical skill or good judgment can replace comprehensive understanding and active participation on the part of the patient or their family," according to the Coverys report of liability and malpractice among surgeons.
Medscape Surgeon Malpractice Report 2021
Similar to physicians in general, most surgeons felt that the outcome of the lawsuit was fair. "The patient deserved compensation," said one respondent. However, this did not mean that respondents felt that the outcome was fair to the physician. "Fair to the patient? Yes. Fair to me? No," wrote a surgeon. Another described hearing the jury ask the judge, "Can we just give the patient some money without finding malpractice?"
Many felt the outcome was not what they wanted because the insurance company insisted on settling the case rather than allowing it to progress to trial. In fact, one respondent wrote that this was the hardest part of the lawsuit — "realizing that my lawyer was on the side of malpractice company and not on my side."
Medscape Surgeon Malpractice Report 2021
Among physicians in general, most awards to plaintiffs were $100,000 or less, but among surgeons, the highest percentage of awards was in the $500,000 or less category (46% vs 35% among physicians in general). An analysis of malpractice claims found that payouts to plaintiffs have been increasing over the years in several specialties, with surgery showing a 23.5% increase over a 22-year period.
Medscape Surgeon Malpractice Report 2021
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 if they've received an apology. However, according to a recent Medscape article, this approach might be "missing the mark."
Most surgeons felt that apologizing to the patient would not have averted a lawsuit. "I advise my colleagues never to say, 'I'm sorry,' because a patient hearing this thinks, 'Oh yeah, he knows he f---ed up!' Then they call 1-800-LAWYER," wrote one surgeon respondent. Another said, "Do not become overly apologetic because it confirms that you doubt yourself." But another advised, "Be really open with the patient and family. Act empathically, but do not appear wrecked (if possible). Ask risk management for help if detecting dissatisfaction."
Medscape Surgeon Malpractice Report 2021
Most surgeons did not feel that the lawsuit ultimately affected their overall medical career, similar to physicians in general. Many respondents complained about the ongoing requirement to report the lawsuit — even if it was dismissed — to credentialing committees for decades afterward and having to pay increased malpractice premiums regardless of the lawsuit's outcome.
"I don't think a single lawsuit is likely to be a black mark on a physician's career, especially in a specialty like surgery, in which lawsuits are more common," says Lohrfink. "Risk managers and physician profilers within medical groups and hospitals are very aware of malpractice litigation, and I suspect they're not only looking at a physician's litigation history but also resorting to personal interviews. The same is true of malpractice carriers. What we've seen is if a physician has several cases within a short period, they will call in the person for an interview. Each group, hospital, or insurer does it differently, but a single malpractice case is not usually going to prevent a physician from being credentialed or insured."
Medscape Surgeon Malpractice Report 2021
Similar to the overall population of physicians surveyed in 2021, a little over half of surgeons said that nothing changed for them after the lawsuit, but approximately one quarter said that they trust patients less. In 2015, about one third said that they no longer trust patients and treat them differently.
"I never felt the same way about practicing medicine since then. To be sued for trying to help someone changes the way you look at every patient," wrote a 2021 surgeon respondent. Some respondents described trusting their fellow professionals less, including fellow physicians, the nursing staff, and the pharmacy. One noted that trust is a two-way street and that the patient must also trust the surgeon. "If trust is absent, inform the patient that you cannot treat him/her."
Medscape Surgeon Malpractice Report 2021
So far, no surgeons reported being named in a lawsuit for a COVID-related allegation. But, legal experts say, time will tell. In some areas, plaintiffs' attorneys are advertising their services for COVID-related claims and are 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.
"We have not seen COVID-related litigation thus far. It probably has everything to do with 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 Catherine Flynn, JD, an attorney with Flynn Watts LLC, Parsippany, New Jersey.
Medscape Surgeon Malpractice Report 2021
A small proportion of surgeons were named in a lawsuit for an action committed by an NP or PA, similar to physicians in general. But the use of NPs and PAs "has become increasingly popular in surgical services," according to a published review. The authors note that changing care models involving NPs and PAs should particularly put policies into place that assure safety during handovers.
Evan Lyman, associate attorney at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, New York, agrees. "When it comes to an NP or a PA, we have seen several lawsuits where the patient was discharged from the hospital by a PA or NP, but the MD didn't sign off on the chart for several days — by which point an adverse event had already happened at home and the patient had already died, so the physician was signing off on the discharge after the patient's death." He advises physicians to check their state laws regarding supervision of these providers because the regulations vary from state to state, and also to ascertain the policy of a hospital regarding the physician's obligation to "eyeball" or quickly examine a patient before discharge from the hospital.
Medscape Surgeon Malpractice Report 2021
Almost all surgeon 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 Lyman. 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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