Most Neurologists Sued at Least Once for Malpractice

Megan Brooks

January 29, 2020

Nearly two thirds (62%) of neurologists/neurosurgeons indicated that they had been named in at least one malpractice suit in the newly released Medscape Neurologist Malpractice Report 2019.

The top reason for the legal action against neurologists was failure to diagnose or delayed diagnosis (45%), which was also the top reason for 33% of all physicians who responded that way in the overall Medscape Malpractice Report 2019.

For the report, Medscape surveyed 4360 physician members in more than 25 specialties. The survey asked physicians whether they had ever been sued for malpractice, the reasons for the lawsuit, what happened, and if the experience changed the way they practice medicine and interact with patients.

The second most common reason neurologists were sued was poor outcome/disease progression (29%), followed by complications from treatment/surgery (20%), failure to treat/delayed treatment (19%), wrongful death (12%), errors in medication administration (7%), and poor documentation of patient instruction and education (7%).

For most neurologists (60%), the lawsuit was completely unexpected; the rate was higher than that for all physicians (52%). More than a quarter of neurologists (27%) were somewhat surprised by the lawsuit, and 14% were not at all surprised.

The vast majority of neurologists (86%) believed the lawsuit was unwarranted, while 10% were unsure. Only a small percentage (5%) thought legal action was justified, slightly lower than the percentage of all physicians (6%).

Nearly one third of the neurologists who were sued (32%) were able to identify the incident that triggered the lawsuit; 53% said there was no specific incident that spurred legal action; and 15% couldn't recall.

Time Consuming, Stressful

In addition to the stress of being sued, lawsuits are time consuming ― 39% of neurologists spent more than 40 hours on their defense, which involved tasks such as gathering records, meeting with attorneys, and preparing depositions.

Forty-two percent of neurologists reported that the whole process took 1 to 2 years to resolve, but more than a quarter (28%) said the process dragged on for 3 to 5 years.

Almost 40% of neurologists named in a malpractice lawsuit reported that the case was settled out of court. Of the cases that went to trial, 12% were dismissed within the first few months.

Of the cases that went to trial, 5% of neurologists reported that the verdict was in their favor; 2% reported that the outcome of the case was in the plaintiff's favor.

Asked why they believe most malpractice lawsuits occur, 76% of neurologists indicated that patients simply don't understand medical risks and blame the doctor for bad outcomes, even if the doctor does everything right.

A little more than a quarter (26%) felt that constant advertising by lawyers to get new clients is the reason most malpractice lawsuits occur; 12% said it was because patients think they can make easy money.

The overwhelming majority of neurologists surveyed (94%) carry malpractice insurance.

To Settle or Not to Settle

Among neurologists with malpractice coverage whose case was either settled or went to trial, more than half (54%) were encouraged by their insurer to settle the case, and 17% were required to settle.

"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," David S. Szabo, Esq, malpractice defense attorney with Lock Lorde LLP, Boston, told Medscape Medical News.

Among neurologists' cases that resulted in a settlement or verdict in the plaintiff's favor, one third of monetary awards maxed out at $500,000, while 27% maxed out at $1 million, and 19% topped $2 million.

Half of neurologists believed the judgment in their case was fair, and the remaining 50% felt it was unfair.

Looking back, neurologists said they would have done several things differently, including documenting the patient's chart better (25%) and not taking on the patient in the first place (15%). Eleven percent said they would have ordered more tests that would have covered them in case of a lawsuit.

More than three quarters (78%) of neurologists felt that saying sorry or offering an apology to the patient would not have deterred their lawsuit.

Nearly 60% of neurologists believed that having a medical panel screen cases for merit is a good way of averting lawsuits. About half reported that placing caps on noneconomic damages could discourage malpractice cases.

Almost half (45%) said better communication and rapport with patients would help mitigate litigation risk, as would making the plaintiff responsible for all legal fees if they lost the case. About one third were in favor of trying cases before health courts.

Fifty-nine percent of neurologists felt that medical organizations or state societies should do more to discourage malpractice cases. This level of dissatisfaction was about the same as the level among all survey respondents.

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