stressed doctor (123RF)

Almost 60% of doctors responding to a Medscape survey on the topic said they had been sued at least once. Eighty-five percent (85%) of Ob-Gyn and Women’s Health doctors reported being sued….85%! That’s almost all of them! Joining Ob’s at the top of the list of sued specialties are surgeons at 83%, orthopedists at 79% and radiologists at 72%.

Percent of physicians sued (Medscape)

By age 54, 64% of physicians responding to the survey said they had been sued at least once. After age 60, that number rose to 80%. Think about this: This means that almost every doctor will experience at least one lawsuit before retiring.

 

Reasons why they are sued

The top two reasons why doctors are sued are “failure to diagnose” (31%) and “patient suffered an abnormal injury” (31%). “Failure to treat” was a distant third at 12%. In addition to selecting one of the offered responses, physicians had a chance to verbally describe why they were sued. Here are the most reasons given most often:

  • Injuries or death during surgery
  • Postoperative infection
  • Late or misdiagnosis of cancer
  • Misdiagnosed cardiac emergency
  • Birth defects or fetal death
  • In-hospitals infections
  • Falls in hospital room
  • Medication errors, and my favorite,
  • Who knows?

 

Who won?

Although most doctors experience at least one lawsuit, most of them are settled before trial (35%), are voluntarily withdrawn by the plaintiff, or are dismissed by the court as the chart below shows. Only 3% of cases go to trial and return a verdict in the plaintiff’s favor!

Lawsuit outcomes (Medscape)

 

How do lawsuits affect doctors?

Malpractice cases take a heavy toll on doctors. I was only sued once during my many years as a front line emergency physician, and even though the case was eventually thrown out as a “nonsuit,” I still remember how angry I was at the unfairness of being sued when I had done everything by the book.

I am not alone in describing the experience as horrible. Twenty-six percent (26%) of male physicians and 37% of female physicians describe being sued as “one of the worst experiences of my life.” Twenty percent (20%) described it as “disruptive and humiliating;” 36% and 33% of men and women respectively said it was “upsetting, but they were able to function.”

One of the physicians responding to the survey said,

“The evils of human nature on display: greed, dishonesty, corruption. Clever lawyering trumps truth.”

Although 45% of respondents said they had no long-term emotional or financial effects, 30% said, “I no longer trust patients; I treat them differently.” According to the survey, “many physicians talked about long-term anxiety, depression, and long-term suffering in general.” One wrote,

“[It] was over 20 years ago and still [I] think about it often.”

Here are some of the other things they reported:

  • Feeling helpless while being lied about by colleagues, patients, and lawyers
  • Implication of incompetence
  • Self-doubt
  • Being judged by non-peers: jurors ignorant about medicine
  • Exposure and humiliation
  • Loneliness and isolation
  • Negative effect on marriage and family

 

Practice disruption

Doctors also reported that the lawsuit disrupted their practice and took time away from patients. In fact, 36% of respondents reported spending more than 40 hours in defense preparation and 40% spent more than 50 hours in court or trial related meetings. For 36% of those sued the lawsuit process lasted between 1 and 2 years; for an additional third, it lasted 3-5 years. For an unfortunate 12%, the process lasted longer than 5 years!

Of note, this is time that private practice docs are not earning money to pay the overhead of their small businesses (70% of office based solo practice and 64% of office-based single-specialty group practice docs reported being sued.)

 

How lawsuits affect doctors’ thinking

It should be no surprise that something as stressful, time-consuming and personal as a malpractice lawsuit would affect how doctors think and act. Over half of physicians reported that they always (with every patient) or almost always worried about the threat of another lawsuit. And, even though most (51%) said they wouldn’t change anything about the way they practiced (“my work was standard of care”), some reported making changes, such as “better chart documentation,” or being “more careful in the way I phrased things.”

Docs done differently (Medscape)

 

Choosing Wisely

In an effort to tackle the well-documented issue of overuse of medical services, most medical societies are participating in the Choosing Wisely initiative first rolled out by the American Board of Internal Medicine (ABIM) Foundation. This initiative focuses on reducing overtesting and overtreatment, a major cost driver in the out-of-control US healthcare system. More than a third of respondents (37%) said they thought “Choosing Wisely” would lead to more lawsuits. Only 24% said that they did not think it would. The rest were unsure.

 

What can be done to reduce lawsuits?

When asked what were the best ways to discourage lawsuits, 81% said cases should be prescreened for merit by medical panels before they can proceed; 62% said caps should be placed on noneconomic damages; 48% said try the cases in health courts; and 37% said lawyers should be banned from taking cases on contingency. Only 13% responded that “doctors should stop making medical errors” and a whopping 81% said saying “I’m sorry” would not have helped!

Seventy percent (70%) thought medical organizations and societies were not doing enough to reduce lawsuits with only 24% saying “some of them have been pretty active and somewhat successful” in this arena.

 

Advice for doctors, by doctors, on what to do if you are sued

Doctors responding verbally to the survey had this advice for their colleagues about how to avoid being sued:

  • Document, document, document
  • Prepare, prepare, prepare
  • Get good legal advice early and listen to it
  • Be sure that your actions are well thought out and your defense reasoned
  • Keep your cool and tell the truth
  • Share only what you can remember or document
  • You can never win at a deposition; but you can lose the case
  • Be patient, be likeable
  • Join a support group

Some doctors said, “If your only concern is the welfare of your patients, it is unlikely you will be sued, and if you are sued, it is unlikely you will lose.” Although I admire the sentiment, I think it minimizes the impact of lawsuits on physicians. The statistics in this survey show that almost every physician will be sued at some time in his/her career. And that, win or lose, doctors suffer both emotionally and financially. And, as the survey concludes:

Of all of the long-term effects expressed in this survey, perhaps the most disheartening was the negative impact lawsuits have on the physician-patient relationship.

4 COMMENTS

  1. I’ve lived the other side of this topic.

    I criticized the bedside manner of Dr. David McKee, a neurologist who examined my father after his stroke. The resulting David McKee MD v. Dennis K Laurion was distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. It was the 800 pound gorilla in the room.

    My mother and wife preferred no discussion, because they didn’t want to think about it. Conversation with my father only reminded him of his anger over this situation. My siblings and children didn’t often bring it up, because they didn’t know how to say anything helpful. I was demoralized by four calendar years of being called “Defendant Laurion” in public documents. While being sued for
    defamation in David McKee MD v. Dennis K Laurion, I was called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I was said to have run a cottage industry vendetta, writing 19 letters, and posting 108 adverse Internet postings in person or through proxies.
    That’s not correct. In reality, I posted ratings at three consumer
    rating sites, deleted them, and never rewrote them again

    The plaintiff’s first contact with me was a letter that said in part
    that he had the means and motivation to pursue me. The financial impact
    of being sued four years was burdensome, a game of
    financial attrition that I haven’t wanted to play. The suit cost me the
    equivalent of two year’s net income – the same as 48 of my car payments
    plus 48 of my house payments. My family members had to dip into
    retirement funds to help me.

    What it’s like for a patient or family member to be caught up in a
    case like this was already described by the plaintiff’s lawyer, Marshall Tanick, in a Star Tribune newspaper article, “Company sues over info put on Yahoo message board,” August 27, 2001. It said in part: “If a company sues, alleging simple business
    disparagement or perhaps defamation, its goal isn’t necessarily to win,”
    said Marshall Tanick, a First Amendment expert at Mansfield &
    Tanick in Minneapolis. “The strategy is to force the other person to
    incur huge legal expenses that will deter them and others from making
    such statements,” he said . . . “yet very few (cases) go all the way to
    trial and verdict,” Tanick said.

    After receipt of a threat letter from Marshall Tanick on behalf of Dr. David McKee, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others included newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations
    professionals, patient advocates, and information technology experts.
    Dozens of websites by doctors, lawyers, patient advocates, medical
    students, law schools, consumer advocates, and free speech monitors
    posted opinions that a doctor or plumber shouldn’t sue the family of a
    customer for a bad rating. These authors never said they saw my deleted
    ratings – only the news coverage.

    Medical peer newsletters or magazines that interviewed the plaintiff
    did not approach me. Websites maintained by doctors for doctors or
    lawyers for lawyers often caused an inference that I was a zealot family
    member or somebody who had asked about my dad’s chances and then shot
    the messenger. Generally, however, those websites echoed other websites
    in advising public relations responses other than a lawsuit – for fear
    of creating the “Streisand Effect.” As a retired layman, I brought far
    less resources to the battle of financial attrition.

    I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read
    generalities like he’s arrogant, rudest waiter I ever met, worst plumber
    ever, etc. However, such generalities are excused as opinion,
    hyperbole, or angry utterances. If one purports to say what happened,
    factual recitations can be litigated. The plaintiff must prove the facts
    are willfully misstated, but the defendant can go broke while waiting
    through the effort.

    During the existence of David McKee MD v. Dennis K Laurion, I heard Doctor McKee’s lawyer, Marshall Tanick, tell the Minnesota Supreme Court how I could have commented without being defamatory: I am upset. I think Dr. McKee did not treat my father well. I think he was insensitive. He did not spend enough time in my opinion.

  2. What I think is sad is that when interviewed, none of the doctors really admitted any wrongdoing or said that they would have improved the quality of medical care they provided to the patient. I am sure that many cases are legitimate and the doctors made poor medical decisions. If a legitimate lawsuit doesn’t convince them that they need to make better medical care decisions, then they should not be practicing medicine.

    • I know I’m late to this one. I noticed the same issue and was disturbed by the implication of the results. However be aware that the doctors interviewed more than likely took a written survey with a fixed set of answers. I’d surmise that the doctors who chose to improve chart documentation, spend more time with patient and family, and/or seek a second opinion are doctors who are genuinely interested in improving their medical care quality. The ‘never take on patient’, careful phrasing, and “CYA” responses are quite disheartening though.

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