Almost Two Thirds of Physicians Have Been Named in a Malpractice Suit: Survey

Marcia Frellick

November 21, 2019

Most physicians (59%) who responded to a new Medscape survey said they have at some point been named in a malpractice suit, either individually or with others.

Of those physicians, 14% said they were the only party named in the suit. In 2013, 9% said they were the only ones named.

For comparison, nationally, a 2016 benchmarking study by the American Medical Association found that for every 100 physicians, 68 liability claims were filed.

More than 4300 physicians in 29 specialties responded to the Medscape Malpractice Report 2019.

Responses show that specialists were sued more often than those in primary care (62% vs 52%).

Table. Top Five Specialties Involved in Lawsuits

Specialty % Named in a Lawsuit
General Surgery 85
Urology 84
Otolaryngology 83
Ob-Gyn/Women's Health 83
Specialized Surgery 80

 

"At least in relation to surgery and obstetrics, there is typically one specific event that happens on one day, and it's very easy and much neater to evaluate, as opposed to a 2-month hospital admission where you're trying to pinpoint when the standard of care was deviated from," said Michael T. Miller, attorney with Smith Haughey Rice & Roegge in Ann Arbor, Michigan, in commenting on the complexity of the cases.

Outcomes of Lawsuits

Only 3% of those who were sued said the case went to court and that the judge or jury decided against them. That percentage has been stable over the past 6 years.

In one third of the cases (33%), the physicians report, the case was settled before trial. In 11% of cases, the matter went to trial and the verdict was in the physician's favor.

In cases that resulted in settlement or a verdict for the plaintiff, 38% resulted in a monetary award of between $100,001 and $500,000.

More than half of respondents (52%) said they were very surprised that they were named in a lawsuit; 14% said they were not at all surprised. The vast majority (83%) said they thought the lawsuit was unwarranted; 11% were unsure; and 6% agreed it was warranted.

"There's a whole host of what you could call psychological factors that can contribute to the filing of a claim," said David S. Szabo, a malpractice defense attorney with Locke Lord, LLP, in Boston, Massachusetts.

Commonly, a patient feels pretty sure that a mistake was made, that there was a breakdown in the physician-patient relationship, and that productive conversation had been shut down, he said.

Many hospitals and large practices have started programs in which physicians can talk to the patient and offer an apology. Sometimes financial remuneration is offered. Some programs have shown success in averting a lawsuit, but according to this survey, most physicians aren't sold on the idea: 82% indicated that saying they were sorry would not have made a difference in the outcome.

As Medscape Medical News has reported, a national assessment found that apology laws, which have been passed in many states, don't reduce litigation or lower payouts.

Reasons for Lawsuits

As in previous years, failure to diagnose or a delay in diagnosis was the top reason for lawsuits. A third of those who were sued (33%) said that that was the basis. Next highest was complications of treatment of surgery (29%), followed by poor outcome or disease progression (26%).

Regardless of reason, physicians reported spending large amounts of time on their defense gathering records, participating in depositions, and talking with attorneys. Forty-two percent of those sued said they had spent more than 40 hours on their defense. The most common duration for the lawsuits was 1 to 2 years, as reported by 40% of physicians sued.

Asked what happened after the lawsuit, nearly half (49%) said they were unchanged by the outcome. The next most common response after the ordeal was loss of trust in patients, as indicated by 25% of respondents, who also said they began treating patients differently.

A gastroenterologist who responded to the survey said, "The lawsuit was constantly on my mind. I feared seeing every patient, thinking this will be the next one to sue."

The vast majority of physicians have malpractice insurance (94%), and in more than half of the cases (59%), their insurer either encouraged or required them to settle before trial. That number has increased from 50% in 2013.

"Generally, if a physician senses that he or she is heading toward a difference of opinion with the insurer about settlement, they probably ought to invest a little time in having personal counsel look at the case," Szabo says.

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