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%.
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?
Although most doctors experience at least one lawsuit, most of them are settled before trial (35%), are voluntarily withdrawn by the plaintiff, or are dismissed by the court as the chart below shows.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!
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
- Being judged by non-peers: jurors ignorant about medicine
- Exposure and humiliation
- Loneliness and isolation
- Negative effect on marriage and family
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.”
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.“