Swipe to advance
1 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Encountering a malpractice lawsuit can shock many physicians, trigger a range of emotions, and cost irreplaceable time, money, and reputational damage. Physicians told us their experiences of being sued, the reasons behind the lawsuits, and how the litigation ended. They also shared how the legal cases affected their practice, their emotional health, and their views about patients.

Some totals in this presentation do not equal 100% because of rounding.

2 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Regarding multi-defendant malpractice claims, "the plaintiffs' attorneys don't always know who their best case is against and out of an abundance of caution, they include more people rather than fewer," says Todd Smyth, a medical malpractice defense attorney based in Charleston, South Carolina, and past vice chair for the International Association of Defense Counsel's Medical Liability Committee.

"They don't want to miss the statute of limitations to sue someone, so there's a bit of a shotgun approach. It also brings more insurance policies into play. The more people they sue, the more potential pots of money to recover from."

3 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

The rates at which PCPs and specialists were sued for malpractice were consistent during the past couple of years. However, since the COVID-19 crisis, physicians have faced less litigation; our 2019 report showed 62% of specialists and 52% of primary care physicians reported being sued.

The pandemic dramatically affected the US court system, leading to decreased filings and a significant backlog of cases. In 2020, the first year of the pandemic, incoming civil cases dropped by 26%, according to data from the National Center for State Courts.

4 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Comparing certain specialties, ob/gyns more often reported being sued than in our 2021 report (79%). Meanwhile, general surgeons have remained the most-frequently-sued specialists for several years.

"Surgeons are at the top of the list because of the complexity of what they do," says Bill Burns, vice president of research for the Medical Professional Liability Association, a trade association for medical liability insurers. "That's typically why insurance premiums are higher for surgeons, since companies price doctors from highest-risk to lowest-risk."

5 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

In our 2021 report, 57% of physicians practicing in Louisiana told Medscape they had been named at least once in a malpractice lawsuit.

The volume of lawsuits varies widely by jurisdiction and depends on a number of factors, such as tort reforms in a given state. More than 25 states have implemented some form of damages cap for personal injury cases.

Judges in some states, however, have overturned such caps. In 2022, for example, the Ohio Supreme Court ruled that state's cap on noneconomic damages was unconstitutional.

6 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Studies show that the more often a physician is sued, the more likely he or she will be sued again. A landmark analysis published in The New England of Journal of Medicine found that physicians with two paid claims were nearly twice as likely to face a future claim, and doctors with three paid claims had three times the risk for recurrence.

"Over a recent 10-year period, a relatively small group of US physicians accounted for a disproportionately large share of paid malpractice claims," wrote lead study author David Studdert, LLB, ScD, a professor of law and health policy at Stanford University.

Several physician characteristics, most notably the number of previous claims and the physician's specialty, were significantly associated with recurrence of claims.

7 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Health systems and hospitals frequently provide professional liability insurance for doctors as part of their employment. In some cases, physicians may not even realize how much their premiums cost, because their individual premium is "hidden in the overall terms of compensation in their employment contract," according to the American College of Surgeons.

8 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Medical liability premiums are rising in many parts of the country, and Medscape's data on malpractice premiums support this. Twenty-one percent of physicians told us their premiums cost at least $20,000 per year, compared with 9% of primary care physicians and 25% of specialists in our 2021 report.

In another analysis from the American Medical Association (AMA), about 30% of premiums rose between 2020 and 2022. Of the liability premiums that went up, the average increase was about 8%.

"Since about 2017, rates for doctors have started to tick upward," says Burns. "We had a soft market until about 2017, but companies are now realizing that prices have been inadequate in some places. There are certain states and counties where increases have been steady or even significant in the last 5 years."

9 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Premiums are traditionally higher for high-risk specialties such as ob/gyn, neurosurgery, and thoracic surgery. In general, medical liability premiums represent about 1%-3% of practice overhead costs, according to the ACS.

"Though such premiums may seem reasonable as simply a cost of doing business, the impact can be significant on an individual basis," wrote author Patrick V. Bailey, MD, author of the ACS article and medical director of advocacy for the college's division of advocacy and health policy.

10 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Since our 2015 malpractice report, failure to diagnosis or delayed diagnosis has consistently been the top allegation reported by physicians.

Researchers have found that "the big three" diseases account for about three fourths of serious misdiagnosis-related injuries. In a study of 11,592 diagnostic error cases, misdiagnosed cancers (37.8%), vascular events (22.8%), and infections (13.5%) were associated with the most severe misdiagnosis-related harms.

11 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

The large majority of physicians (88%) said that the lawsuit against them was not warranted, whereas 4% said it was and 7% were unsure.

12 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

These percentages have remained fairly consistent over a decade of our Medscape surveys. Liability lawsuits can last a considerable amount of time for several reasons, Burns says.

"Once a claim is reported, it's gathering the records, it's finding experts. These things take time," he says. "Then you have to wait to get on a docket to get a trial, which in some counties could be years."

Burns adds that courts are slowly working their way through the massive case backlog caused by the pandemic.

13 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

How lawsuits ultimately ended in this year's report aligned with previous years.

Despite most cases ending in dismissals or settlements, physicians who do go to trial often prevail. Of the small percentage of claims decided by a trial verdict, nearly 90% are won by physician defendants, according to the AMA.

Win or lose, however, such cases still impose steep defense costs and time away from the physician's practice and family.

14 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

"Verdicts have definitely been more sizable since the pandemic," Smyth says. "When we lose cases, the dollar amounts tend to be higher. Of course, the cost of healthcare is going up, and so that's reflected in things like medical expenses, whether actual or future. As those rise, we tend to see [awards] rise as well."

15 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Most doctors (59%) did not believe that their legal case negatively affected their medical career. Another 29% thought it did, and 12% of doctors were unsure.

16 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

"It speaks well of the profession that the most popular response was that physicians took steps to reduce the risk of future claims," Smyth says. "The sad flip side of that is the next [most frequent] response.

"The concept has been referred to as 'defensive medicine.' That's an unfortunate consequence of the volume of suits that we're seeing. Once somebody's been through this once, it certainly changes them and changes the way they practice."

17 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Nearly half of physicians suggested that medical panels that screen cases for merit could help deter complaints, a strategy some states already have in place. Seventeen jurisdictions, including Alaska, Kansas, and Massachusetts, require that screening panels review medical liability cases before they can move forward, according to the National Conference of State Legislatures.

Most of these panels include legal experts and health professionals who evaluate evidence and provide an opinion about potential negligence. Most decisions are nonbinding, and the parties can still proceed to court if they wish. Opinions are mixed on whether the panels help reduce the rate of frivolous claims.

18 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

19 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

Practicing defensive medicine can come at a price. Researchers estimate the overuse of tests and procedures for fear of litigation costs the US $46 billion annually.

And in a JAMA Internal Medicine  analysis of three healthcare institutions, 28% of orders and 13% of costs were found to be at least partially defensive.

20 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

21 of 22

Scroll

Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023

Alicia Gallegos | October 26, 2023 | Contributor Information

22 of 22

Related Content on Medscape

Start
 

A Good Year for Paychecks: Medscape Female Physician Compensation Report 2023

Female physicians reveal their annual earnings and financial concerns, personal rewards and challenges, and small steps toward parity with their male counterparts.Medscape News Slideshows, Oct 2023
All Slideshows
1 26 Next