During Pandemic, Malpractice Cases Drop Slightly: Survey

Avery Hurt

November 19, 2021

Editor's note: Find the latest COVID-19 news and guidance in Medscape's Coronavirus Resource Center.

About half of all physicians will be sued at some point in their careers. It's a stressful and difficult experience no matter what the outcome. In addition to the time and expense, malpractice suits can take a heavy emotional toll on physicians personally, in their relationships with their patients, and with their families.

In Medscape's Malpractice Report 2021, more than 4300 physicians in 29 specialties shared why they were sued, the outcome, and how the ordeal affected their practice and their lives. For the most part, the results were similar to those of the previous survey (2019), but fallout from the COVID-19 pandemic did have some effect.

Roughly half (51%) of the new survey's respondents said they had been named in at least one lawsuit. The data in the 2021 report were similar to those of the 2019 survey, but COVID may have had an effect on the overall number of lawsuits. With fewer people undergoing medical procedures during the pandemic, the number of physicians who reported being involved in a lawsuit — either individually or as part of a group — dropped 6% for specialists before the pandemic and 10% for primary care physicians.

No physicians reported being involved in a COVID-related lawsuit, probably because pandemic-related executive orders granted immunity to healthcare workers. The most common reasons for lawsuits were consistent with previous surveys: failure to diagnose, and complications of treatment.

Surgeons, whether general or specialized, were more likely than other specialists to be sued. This is probably because surgeons typically don't have long-term relationships with patients and often perform high-risk procedures, according to J. Richard Moore, JD, attorney with Bleeke Dillon Crandall, in Indianapolis, Indiana.

Few Malpractice Cases Go to Trial

Most malpractice claims never make it to trial. In keeping with the results of Medscape surveys over the past 8 years, 33% of those surveyed said their cases were settled before coming to trial, while only 2% said that the case went all the way to trial and the plaintiff ended up winning.

Some specialties fare better than others. According to a landmark 2012 study, internists are the mostly likely subset of physicians to have their cases dismissed, pathologists the least likely. Catherine Flynn, JD, an attorney with Flynn Watts LLC, in Parsippany, New Jersey, says, "There are some lawsuits that are warranted, but many times, it has more to do with the economic motivations of plaintiffs' law firms than a bad outcome."

Generally, though, most physicians felt the end result of their case was fair. One internist said, "Although this was a rare condition, there were at least two chances for me to catch it, and I failed." However, not all were pleased with how things turned out. One surgeon said, "The settlement wasn't my idea. I believe I would have prevailed in court."

Despite generally favorable results, the process is time consuming and costly. The case can take more than a year ―40% of cases lasted from 1 to 2 years, a survey result that hasn't changed in 8 years. However, a backlog of cases due to the pandemic may soon extend that.

Physicians were often surprised to find that they were named in a malpractice suit. "I was surprised by the suit because I was still caring for the patient, and the parents had never said anything," reported one otolaryngologist. That reaction is not uncommon, according to Moore. "I think physicians would like to think there is some predictability in who files suit, but the reality is that you never know," he said.

Take Better Notes...and Don't Alter Them

For physicians, better charting heads the list of things to do differently next time. Careful and extensive documentation is one of the best practices for malpractice protection.

However, Michael Moroney, JD, an attorney with Flynn Watts, warns that going back after the fact and changing the documentation is a dangerous move. "It can taint the rest of the case and prevent the jurors from believing that the doctor is telling the truth," he says.

While the experience was certainly not a pleasant one, fewer than one third of physicians surveyed believed the lawsuit negatively affected their careers, and more than half reported no career or attitude changes resulting from the experience, though for some who did, the changes were significant.

One rheumatologist reported that the experience "interrupted my practice and family activities. It conditioned me to be more defensive in my practice and view every patient as a potential adversary." One internist responded by giving up medicine and going to work for an insurance agency.

Avery Hurt is a freelance science and medical writer.

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