Lawsuits: Most Doctors Say There Was No Trigger Event


November 15, 2017

In This Article

Other Key Results From the Survey

The Challenges of Diagnosis

Primary care physicians were most often sued for failure to diagnose/delayed diagnosis (43%), poor outcome/disease progression (25%), failure to treat/delayed treatment (20%), and wrongful death (20%). In contrast, specialists were most often sued for complications of treatment/surgery (31%), followed by failure to diagnose/delayed diagnosis (28%), poor outcome/disease progression (24%), and failure to treat/delayed treatment (16%).

Dr Troxel commented, "A study of diagnosis-related malpractice claims by The Doctors Company shows that factors that may cause diagnostic error include first-impression or intuition-based diagnoses; narrowly focused diagnoses influenced by a known chronic illness; failure to create a differential diagnosis; impaired synthesis of diagnostic data from various sources (such as medical history, physical examination, diagnostic tests, or consultations); failure to order appropriate diagnostic tests; context errors; failure to follow diagnostic protocols; system-related errors (such as poor communication or electronic health record design flaws); and human-factor errors (such as impaired judgment, fatigue, or distractions)."

"Diseases are simply difficult to diagnose," says Fitzpatrick. He cites cases he has defended in which he feels it would be nearly impossible for most physicians to diagnose. Many cases occur in the emergency department and involve necrotizing fasciitis, which in its early stages appears like the flu.

"A mother comes in saying that her child has fever and flu symptoms; her other children are home with the flu. At that stage, most doctors would have no reason to keep the child in the hospital and give them an IV. But by the time it becomes apparent that it's necrotizing fasciitis, it's late-stage and children are losing limbs, which have to be amputated to save their lives. Many of those parents will bring lawsuits."

"Physicians are trained that if they hear hoof beats, think horses, not zebras," says Fitzpatrick. "But what if the disease is not only a zebra, but an albino zebra? Who's going to do all the tests on the chance that something could be an albino zebra?"

"A study by the RAND Corporation based on claims data provided by The Doctors Company shows that the average physician spends over 4 years of a 40-year career fighting malpractice claims—the majority of which end up with no indemnity payment," says Dr Troxel. "The good news is that physicians today are being sued less frequently than in the past. Our data show that the number of claims has decreased from nearly 12 per 100 doctors in 2003 to about 6 per 100 doctors in 2016."

"The top 5 specialties all perform major surgical procedures where the risk for complications is high," says Griffith, the Pennsylvania attorney. "Many patients complained that they were never told about the risks or complications. They were handed a consent form and told to sign it by a nurse."

"I also suspect that there is a failure in patient screening," says Griffith. "Better evaluations may lead to patient exclusion or the recognition that an alternative procedure creates less risk. Sometimes a referral to a higher level of specialist is best for the patient and the doctor."

More Malpractice Results From Physicians

  • The vast majority of lawsuits were settled or dismissed before a judge or jury verdict was rendered. Also, 32% of cases were settled (either before or at trial) and 38% were dismissed (either before or at trial).

  • Good news for physicians: In 12% of cases, the jury/judge found in favor of the physician; in only 2% of cases did the jury/judge find for the plaintiff. Those percentages were very similar to those in 2013: 12% had a verdict in the doctor's favor and 2% in the plaintiff's favor.

  • Lawsuits exacerbate a physician's time crunch. One third of physicians spent more than 40 hours preparing for their defense, including getting records together, meeting with their attorney, preparing for depositions, and discussions. And 18% spent more than 50 hours in court and trial-related meetings.

  • Malpractice suits can drag on for years, causing stress for a physician over a prolonged period. For 30% of physicians, resolution of their lawsuit took 3-5 years. For 10% of physicians, it took more than 5 years.

  • Although many healthcare leaders say that the "sorry works" philosophy of admitting to a medical error (along with other activities) can help to avert a lawsuit, 83% of physicians say they believe that it would have made no difference regarding their getting sued.

  • To discourage malpractice lawsuits, physicians favored better communication and rapport with patients, having a medical panel that screens cases for merit, and placing caps on noneconomic damages.

  • Plaintiffs in malpractice cases often walk away from malpractice suits with a substantial financial award. Over two thirds of physicians (68%) said that the plaintiff received up to $500,000, and 17% said the plaintiff was awarded $500,000 to $1 million. Five percent received over $2 million. Only 4% of plaintiffs received nothing.

  • Looking back, physicians who were sued say they would have done things differently. Better chart documentation was cited most often (22%), followed by never having taken on the person as their patient in the first place (12%). Ten percent would have ordered tests that would have "covered them" if they were sued (ie, practiced defensive medicine).


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