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Medical Malpractice Lawsuits

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We hear a lot about medical malpractice suits and how they affect the practice and the cost of medicine. Doctors sometimes get the feeling that a lawyer is looking over their shoulder as they interact with patients, and sometimes they practice “defensive medicine,” ordering unnecessary tests and doing what they think would look best in court rather than what is really in the patient’s best interests. One of my colleagues in the Air Force, a psychiatrist, said at his retirement ceremony that he considered his career a success because he had never been sued. That struck me as a sad commentary on what it means to practice medicine today.

Some of my preconceived ideas on the subject of malpractice were challenged by a recent survey. Medscape asked 3,480 U.S. physicians about their experience with malpractice suits. 60% of responding physicians reported they had never been named in a lawsuit, 31% had been sued in conjunction with other defendants like hospitals, and only 9% were sued as individuals.

Among those sued, the specialties most represented were internal medicine (15%), family medicine (13%), ob/gyn (9%), psychiatry (8%), gastroenterology (6%), cardiology (6%), and pediatrics (5%). Allergy/immunology was the lowest at 0.4%. Part of the variation is likely a reflection of the numbers of doctors practicing each specialty.

Reasons for the lawsuit: failure to diagnose (35%), failure to treat (17%), informed consent (4%), and other (45%, some legitimate and some clearly opportunistic). One respondent was sued after a laparoscopy by a patient who complained that she could no longer eat big meals and enjoy steaks; she neglected to reveal that between the laparoscopy and the suit, she had a gastric bypass and stomach stapling.

23% of respondents said the experience of being sued was horrible, one of the worst experiences of their lives. Some described harassing phone calls, a near-divorce, and a decision to stop practicing OB.

1% expected the lawsuit, 24% suspected there might be a lawsuit, and 74% had no inkling they would be sued.

We hear the horror stories about huge judgments, but most lawsuits don’t even go to trial. In 5%, the case went to trial but was settled prior to a verdict; in 16% the case went to trial and a verdict was rendered. In the rest of the cases, the suit was dismissed or settled out of court, either before or after depositions.

Even if the case didn’t go to trial, being sued was time-consuming. 28% of doctors spent more than 40 hours meeting with attorneys, gathering records, and preparing for depositions.

The length of the entire lawsuit process was most likely to be 1-2 years (39%); 28% lasted 3-5 years, and 11% went on for more than 5 years.

Outcomes: voluntarily dismissed by plaintiff (22%), dismissed by the court (13%), settled before trial (35%), settled at trial (3%), jury returned a verdict in favor of the doctor (13%), jury returned a verdict in favor of the plaintiff (2%).

Monetary award: None (57%), up to $500,000 (34%), up to $2 million (9%), over $2 million (2%).

62% thought the result of the lawsuit was fair. Only 7% thought saying “I’m sorry” would have helped. One who didn’t think so commented that a patient’s wife had interpreted his apology as an admission of guilt and a reason to sue. In most cases, defense lawyers were provided by the insurer. 70% were completely satisfied with their lawyers, 1% thought they were incompetent and destroyed the case. Some insurance policies have a “required to settle” clause; doctors were required by their insurer to settle in 9% of cases and encouraged to settle in 21%. Insurance covered the entire payout in most cases. Patients’ reactions to lawsuit: 91% said their patients didn’t know about it or didn’t mention it; in only 1% of cases, some patients left the doctor’s practice. Long term effects: 29% said they no longer trust patients and treat them differently, 6% left the practice setting, 63% reported no effects.

When asked about the worst thing about the trial, emotions came through loud and clear. One doctor was asked to “list the date, publisher, and title of every book, magazine, journal you own and/or subscribe to.” One complained that the plaintiff’s attorney lied; another said the judge fell asleep during the trial.

Advice to avoid lawsuits:

  • Follow up even when you don’t think you have to
  • Practice more defensive medicine (One commented that “It is perfectly legitimate to order every test that you feel is acceptable to prevent another suit.”)
  • Document more often, more thoroughly; document even cursory conversations.
  • Get rid of rude, demanding, noncompliant patients.

I don’t know if we should believe the Medscape study, since it was based on physicians’ voluntary responses to a questionnaire and may not have been a representative sample of the physician population. A 2011 study in The New England Journal of Medicine was based on more objective data from a large liability insurer and it got rather different results. It found that 7.4% of physicians are sued every year, with the highest rates among neurosurgeons (19.1%), cardiothoracic/vascular surgeons (18.9%), and general surgery (15.3%), and much lower rates for family medicine (5.2%), pediatrics (3.1%), and psychiatry (2.6%). It estimated that by the age of 65 years, 99% of physicians in high-risk specialties and 75% of physicians in low-risk specialties have been sued. 78% of malpractice cases did not result in payments to claimants; when they did, the median payment was $111,749. The highest mean payment was in pediatrics, over $500,000. Recently there has been a trend to decreasing amounts, not increasing.

According to some reports the number of malpractice suits and the cost of malpractice insurance are both decreasing. One source estimates that the average insurance premium for surgeons is $10,000; for internal medicine specialists, $4-6,000. But premiums vary widely by location, insurer, specialty, and type of coverage. The standard rate for a neurosurgeon practicing in Long Island in New York State is $331,295.

Various studies estimate that malpractice coverage and defensive medicine account for 2-11% of total health care spending.

I don’t question that patients should be compensated for injuries due to physician malpractice, but unfortunately the “system” tends to hurt some good doctors who are practicing good medicine, and some doctors who should lose their license get away with egregious malfeasance because they are able to inspire loyalty from their patients. I remember hearing about a surgeon whose patient returned complaining of pain. He did an x-ray, saw that he had left a surgical clamp in her abdomen, and instead of apologizing or even admitting that he had done anything wrong, he told the patient “I think that clamp has just about finished doing its job now, and we can take it out.” He charged her full price for a second surgery; she remained oblivious and was grateful for what she thought was his thorough, attentive care.

I wonder if there isn’t some better way. Hospital M&M (morbidity and mortality) conferences do a good job of not only identifying errors but of helping doctors learn from them. Judges and juries aren’t as capable of understanding the intricacies of the medical issues involved. In an ideal world, some independent body of medical experts could determine whether standard medical practice was followed and whether the physician made a mistake, and could advise the courts on the medical merits of the case. In the real world, doctors will just have to keep paying those insurance premiums, documenting everything, improving communication, and earning their patients’ trust. And lawyers will not lack for business.

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