Malpractice and Medicine: Who Gets Sued and Why?

Carol Peckham

Disclosures

December 08, 2015

In This Article

Why Do Physicians Get Sued?

Nature of the Lawsuits

When asked about the nature of their lawsuits, respondents could check as many options as were relevant. Tied in first place at 31% were suits related to a failure to diagnose and patients suffering abnormal injuries. In the 2011 JAMA study, lawsuits in the outpatient settings were more likely to be due to diagnostic issues and in the inpatient setting from surgical errors.[4] Failure to treat at 12% was in third place and far behind the first two. Less than 5% cited poor documentation or medication errors (both 4%) or failure to follow safety procedures or obtain informed consent (both 3%).

Physicians also provided hundreds of verbal responses to describe this experience, which are summarized as follows:

  • Injuries or death during surgery;

  • Postoperative infection;

  • Late diagnosis or misdiagnosis of cancer;

  • Misdiagnosed cardiac emergency;

  • Birth defects or fetal death;

  • In-hospital infections;

  • Falls in hospital room;

  • Medication errors; and

  • "Who knows?"

The Effects of a Lawsuit on a Physician's Life

The emotional effect of being sued can be profound. Studies have reported a relationship to burnout, depression, and thoughts of suicide among physicians who are recently sued or charged with a complaint.[5,6]

The Immediate Impact: A Surprise Attack

Most physicians (70%) were surprised when they were sued. Slightly more than a quarter (27%) suspected this threat. Only 3% absolutely expected to be sued. One physician wrote, "Surprising and upset to have the action filed after spending many hours caring for patient in the OR and SICU after very high risk surgery (tertiary care academic institution). During this time there was no indication the patient nor family was anything but very appreciative for his care." Another said, "Such a shock to open that letter and see you are being sued. Like getting kicked in the gut."

Long-term Emotional Effects of the Lawsuit

Only 1% of physicians who responded reported that they are never bothered by the threat of a lawsuit. Just 19% were rarely bothered—unless something went wrong with the patient or there was a trigger event. Over half (54%) admitted that the possibility of a lawsuit affects them either always—with every patient—or almost all the time.

Twenty-one percent of men and 32% of women added verbal responses on how they had changed. Some expressed the desire to improve professional behavior, notably documenting more and connecting with patients—not only their own but anyone whose case they are involved with. On the negative side, many physicians are now far less trustful; not only of patients but, in some case, of their colleagues. Some see fewer patients or none at all, and others no longer take charity patients, underserved populations, or complex cases. Few physicians wrote about financial consequences, although some described skyrocketing premiums and deductibles. One said that his practice lost $1 million, which they hadn't fully recovered 6 years later. Many physicians talked about long-term anxiety, depression, and long-term suffering in general. One wrote, "[It] was over 20 years ago and still think about it often."

Hundreds of physicians responded to the question on the worst part of being sued, being put on trial, or both. More than a few said that it was the worst experience of their lives, and many said that the effects lasted for years. The following list summarizes the experiences most discussed by those who commented verbally:

  • Feeling helpless while being lied about by colleagues, patients, and lawyers;

  • Implication of incompetence;

  • Practice disruption and unreimbursed time away from patients;

  • Being judged by nonpeers: jurors ignorant about medicine;

  • Self-doubt;

  • Exposure and humiliation;

  • Loneliness and isolation; and

  • Negative effects on marriage and family.

It is obvious at least from this survey that the current approach for dealing with medical errors is not only inefficient but is damaging to the healthcare system as a whole.

Changed Attitudes on Patients and the Profession

Malpractice suits have produced widespread disillusionment among physicians concerning care of patients, the legal system, and medicine as a profession. Thirty percent of physicians reported that they would treat patients differently because of a lawsuit. One advised cynically, "Treat all patients as potential cases for lawsuits." Another physicians said, " We spend an enormous time training staff how to document every event of patient contact. They are trained to think of any way a patient could sue us from the time they walk in the door. It's ridiculous." A few physicians wrote that being sued was the reason they were leaving or thinking of leaving medicine, with 7% of respondents leaving their practice because of malpractice suits.

Financial Impact

Over half (51%) of cases resulted in no award; 20% were under $100,000; and 29% were over this amount. Only 5% of verdicts or settlements awarded plaintiffs over a million dollars. In a 2011 JAMA study on paid claims, mean payment amounts were much higher in inpatient settings ($362,965) compared with outpatient settings ($290,111).[4] A major study on claim payment by specialty reported that the highest average amount (over $500,000) was against pediatricians (although they were among the least likely to be sued than other physicians). Neurosurgeons were next, followed by pathologists and ob/gyns, all with average claim payments between $300,000 and $400,000.[2]

Although there was only a 10% variance among all US regions of the percentages of physicians who reported being sued (55% in the West to 66% in the Southeast), wider differences were observed in awards of over half a million dollars. Eighteen percent of physician respondents in the Northeast reported awards over $500,000, followed by 15% in the Northwest and 14% in the Mid-Atlantic regions. Only 5% of physicians in the North Central reported these high awards, followed by 7% in the South Central, 8% in the West, and 9% in the Southeast. A recent Forbes report supported these results by finding Minnesota, Mississippi, and Texas to be among the states with the lowest malpractice awards and Rhode Island, New Jersey, and Oregon to be among the states with the highest payouts.[7]

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