Malpractice and Medicine: Who Gets Sued and Why?

Carol Peckham

Disclosures

December 08, 2015

In This Article

The Scope of the Malpractice Problem

Medscape surveyed almost 4000 primary care physicians and selected specialists to find out if and why they were sued and how the lawsuit affected their career and patient care decisions. Fifty-nine percent of respondents to the Medscape survey have been named in at least one malpractice suit. Nearly half (47%) were among others named in the suit, and 12% were the only parties sued. While among the specialties surveyed, some were sued more than other, no physicians are immune. According to a 2010 American Medical Association (AMA) survey on all physicians, on average 42.2% are sued, with 22.4% sued twice or more, and by late career the risk increases to 61%.[1]

Who Gets Sued? The Most and Least Vulnerable Specialties

According to recent studies, among all physicians, obstetricians/gynecologists (ob/gyns) and surgeons are most likely to be sued, psychiatrists and pediatricians are least likely to be sued, and primary care physicians fall somewhere in between.[1,2] Of the specialties surveyed this year by Medscape, 85% of ob/gyns, 83% of general surgeons, and 79% of orthopedists reported having been sued. In addition, at 23% and 26%, respectively, general surgeons and orthopedists had the highest percentage among specialties surveyed of being the only parties named; ob/gyns came in third at 18%.

Do Men Get Sued More Than Women Do?

A 2015 analysis found that male doctors were nearly two and a half times more likely to have legal claims made against them than women doctors.[3] These findings were similar across a number of countries. The current Medscape survey also reflected this disparity: two thirds (64%) of male respondents reported being sued compared with slightly less than half of women (49%). Women are also far less likely to be the only named defendant in a suit (8% vs 14%). Women are sued less than men regardless of specialty (see Figure).

Figure 1. Physicians sued by gender and specialty.

Male physicians did have a slight edge (47%) over women (41%) in cases resolved in favor of the defendant either from dismissal or by verdict. Sex appeared to play no role in the percentage of cases that reached a settlement before or during trial (38% of men and 37% of women).

According to the question on the experience of being sued, men and women seemed to differ on the intensity of its negative effect. Fifty-seven percent of women chose the most negative options: very bad (20%) or horrible—the worse experience of their lives (37%). Forty-five percent of men had these extreme responses (20% and 26%, respectively). About half of men (51%) said that it was merely unpleasant and irritating or upsetting, but they could function. Fewer women (41%) chose these less extreme options. Four percent of men and 2% of women were either neutral or thought it wasn't as bad as they thought it would be.

Age

A 2011 analysis in the New England Journal of Medicine projected that 36% of physicians in low-risk specialties and 88% of those in high-risk specialties would experience a first claim by age 45 years; this would increase to 75% of low-risk specialists and 99% of high-risk specialists by age 65 years.[2] In the current Medscape survey, by age 54 years, 64% of the physicians who responded had experienced at least one malpractice suit over the course of their careers. After age 60 years, the percentage rose to about 80%. As one respondent wrote, "The older you get, the more you have to lose."

Work Setting and Risk for Lawsuit

A JAMA study published in 2011 reported that 48% of paid claims were for events in inpatient settings, 43% in outpatient setting, and 9% in both.[4] In this year's Medscape survey, the largest percentages of those who faced lawsuits were in office-based solo practices (70%) or single-specialty groups (64%). Of interest, the second lowest percentage (53%) reported was from physicians in office-based multispecialty groups. Ownership may play a role in the higher risk in solo practices and single-specialty groups. In the 2010 AMA survey, physicians who had an ownership interest in a practice were at greater risk than those in other settings, with 47.5% of them reporting being sued compared with a third of those without ownership interest.[1] In the Medscape survey, the settings least likely to produce lawsuits (47%) were outpatient clinics.

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