Any Doctor Can Be Sued
The specter of being sued for medical malpractice is never far from the minds of physicians. Even when doctors do everything right, any patient can suffer a serious complication or poor outcome that might lead to a lawsuit.
Being sued is an upsetting event at best and a terrible, life-changing experience at worst. In an exclusive survey with almost 3500 respondents, close to 1400 physicians who were sued for malpractice told us why they were sued, what they might have done differently, how it affected their lives, and how it changed the way they practice medicine.
About 40% of survey respondents were named in a lawsuit. Thirty-one percent of responding physicians were one of many parties named; another 9% were the only physician named.
One key finding in Medscape’s Malpractice Report was that almost three quarters (74%) of the physicians sued were taken by surprise. In fact, 59% said there was no “trigger incident” that would have made them expect a lawsuit.
The survey results also explode the myth that a small number of “bad apple” doctors are the prime cause of malpractice suits. No payment was made in 57% of cases brought against our respondents, as the majority were dismissed or withdrawn before trial.
Some other key findings from the Medscape study:
- Despite the popularity and reported effectiveness of disclosure and apology programs in hospitals, 93% of doctors sued said they believe that saying “I’m sorry” would not have prevented their lawsuit.
- 23% of doctors said the experience of being sued was “horrible, one of the worst experiences of their life.” Another 16% said the experience was “disruptive and humiliating.” Only 3% said it was a “neutral” experience.
- 39% of doctors said the litigation process took more than 3 years before it was resolved.
- 29% of sued doctors said, “I no longer trust patients. I treat them differently.” And despite the nationwide pressure to reduce healthcare costs, many doctors said they now practice defensive medicine rather than face the risk for another lawsuit. “If it hurts between the nose and the toes, consider it a heart attack and stress-test everyone from 9 to 90!” said one respondent.
Why Physicians Are Sued
Failure to diagnose or a delay in diagnosis accounted for 35% of the claims against the survey’s doctors, whereas 17% said that failure to treat was the main allegation. Lack of informed consent accounted for 4% of cases, and 45% of respondents cited other reasons. Other causes comprised a variety of situations, some legitimate and some clearly opportunistic.
One physician cited “a medical error with an unexpected unfavorable outcome.”
Another said, “The patient missed a follow-up appointment, the system didn’t contact him about the malignant diagnosis, he didn’t get treatment, and the rest is history.”
Other responses:
- “The patient had side effects from his treatment. These were known side effects, but most patients never believe it will happen to them.”
- “There was a fetal demise at 19 weeks. Prior to trial, it became apparent that the mother (patient) was using cocaine.”
- “The patient had a complication after a laparoscopy. She then sued, saying that she no longer could eat big meals and enjoy steaks. She neglected to reveal that between the time of my laparoscopy and the suit, she had a gastric bypass and stomach stapling.”
“There’s some overlap in failure to diagnose and treat,” said Sam Rosenberg, a malpractice defense attorney with Reiseman Rosenberg Jacobs & Heller in Morris Plains, New Jersey. “These are broad categories. Another category that’s growing is failure to monitor. If a patient’s [warfarin] levels aren’t monitored properly, he or she could get bleeding in the brain and a bad outcome. Some other drugs also need to be monitored closely for side effects.”
Diagnosis cases account for about two thirds of cases filed against primary care physicians, including emergency medicine, said Alan Lembitz, MD, Chief Medical Officer of COPIC, a professional liability carrier based in Colorado. “These cluster in categories: heads, hearts, bellies, bugs, and cancer. That includes acute neurologic problems and strokes, myocardial infarctions and pulmonary embolisms, surgical abdomen issues, infectious diseases, and failure to diagnose cancer. For surgeons, the main issues are proper patient selection, technical performance, recognition of and response to complications, and informed consent.”
Blindsided by a Lawsuit
Nearly three quarters of physicians who were sued said they were astonished to learn that they were being sued. Only 1% said they definitely expected a lawsuit. “Either the physician didn’t know that anything was wrong, or they did notice something but didn’t expect the patient to sue,” says Rosenberg. “There are always situations on a daily basis in a doctor’s office where a patient is not happy. A doctor might suspect that the patient had an injury but did not expect that a lawsuit would be filed.”
“In our experience, the doctor is usually aware of either an unexpected adverse outcome or an angry patient,” said Richard E. Anderson, MD, chairman and CEO of The Doctors Company, the nation’s largest professional liability carrier for physicians, based in Napa, California. “They may not have expected a suit, but there’s usually some warning of a problem.”
“Of the doctors who aren’t surprised, there’s often a clear medication or communications error they know about and suspect may come back to haunt them,” said attorney Rosenberg.
Specialists in particular may be surprised at being sued because they often have no way of knowing whether the patient is doing poorly. “There’s not a lot of clinical follow-up in radiology and emergency medicine because the care is episodic,” said Dr. Lembitz. “In other situations, some doctors have an inherent denial. There’s often a communication breakdown, where the doctor avoids having a difficult conversation with a patient or family after a bad outcome. So they really shouldn’t be that surprised when they receive an attorney’s letter.”
Does Saying ‘I’m Sorry’ Discourage Lawsuits?
Our respondents overwhelmingly (93%) said it would have made no difference in whether or not they were sued. Given that a large proportion of physicians were not expecting to be sued, it makes sense that it would not have occurred to them to apologize.
Comments from physicians who were sued:
- “It was not my fault; my name was in the chart, so the plaintiff’s lawyer sued me also. It’s ridiculous that this is allowed.”
- “I believe I showed too much ‘sorry’ and concern for the patient’s wife, and she took it for guilt.”
- “I did apologize to the patient when I found out that she suffered an adverse event. It made no difference, even though she said not to worry and that it was not my fault.”
Said Rosenberg, “We’d all like to think that if you do the right thing and are empathetic, that will make someone think twice before suing,” said Rosenberg. “But the reality is different. If someone is injured seriously enough, he’s more likely to sue even if he isn’t sure who is at fault.”
Dr. Anderson of The Doctors Company disagrees. “We were one of the first liability insurers to support a program of active disclosure and apology. When it’s done properly, an apology can diffuse some of the anger, and anger is the primary fuel driving litigation. Sometimes an apology can be enough to prevent a suit. You can express empathy without admitting fault and compromising your defense.”
Nationwide, some 30 states have laws that bar patients from using apologies against a physician in court.
Multiple Defendants in Malpractice Suits
Almost 80% of respondents said other physician-defendants or hospitals were also named in the lawsuit against them. Only 20% said they were the only one named.
“In lawsuits that arise out of hospital treatment, there are usually a large number of physicians involved in the care,” said Rosenberg. “Typically, the hospital is named as well, mostly because the plaintiff’s attorney wants to have as much insurance coverage available as possible. If you sue only one doctor, any recovery is limited to that doctor’s coverage. So lawyers try to maximize the coverage available. Also, the plaintiff’s attorney may have different theories of liability against different providers. Some may not pan out.”
Malpractice insurers agree. “The shotgun lawsuit is standard operating procedure,” said Dr. Anderson. “Many attorneys will name everyone in the building that day, and then winnow the crowd down later.”
“It’s inexpensive to file a lawsuit,” said Dr. Lembitz. “There’s no disincentive for the plaintiff’s attorney to name multiple defendants. They also hope that multiple defendants will lead to finger-pointing, playing one doctor against another. Divide and conquer. Unfortunately, I don’t see anything that will reduce this trend.”
Most Cases Don’t Go to Trial
Only 21% of cases went to trial. Roughly 26% of doctors said their cases were dismissed before depositions were taken; 45% went to depositions but not to trial, and of those, 5% were settled before a verdict.
“Some plaintiff’s attorneys file a lawsuit without doing much research,” said Rosenberg. “As the lawsuit progresses, they realize there isn’t much of a case and start dismissing defendants. When a case is dismissed in the first few months, it’s usually because the lawyer didn’t obtain an affidavit of merit from an expert witness.”
“Cases are dismissed after depositions because the medical liability becomes clearer, or the defendant doctor has solid documentation and is seen as an effective and credible witness,” he said. “Conversely, when the doctor is a poor witness, the carrier may recommend settlement instead of trial.”
Although only a small fraction of cases go all the way to trial, verdicts have a deep impact on future settlement negotiations. “In our company, only about 6% of cases go to trial,” said Dr. Anderson. “We win 9 of 10 of them. But let’s say there’s a $50 million verdict in an anesthesia case. That prompts plaintiffs’ attorneys to seek similar damages. The settlement negotiations start at a higher level.”
Awards to Plaintiffs Are Getting Larger
The plaintiff received no monetary award or settlement in 57% of the lawsuits in our survey. About one third of plaintiffs received up to $500,000; another 11% received more than $1 million.
“The average cost of claims has been steadily increasing for years, but the number of million-dollar cases has tripled over the past few years,” said Dr. Anderson. “Plaintiffs’ attorneys get very sophisticated in arguing for big damages and enlisting the sympathy of jurors. But another reason is what I’d call monetary desensitization. The average award of a few hundred thousand dollars doesn’t seem like such a large number anymore. As a society, we talk about billions and trillions of dollars very easily. So $1 million verdicts don’t seem so shocking anymore.”
Precious Time Spent in Litigation
About 28% of physicians said they spent more than 40 hours preparing for their defense — before the trial. That means securing and reviewing records and medical articles, preparing for depositions, and having discussions with their insurer and attorneys. Another 30% of respondents spent more than 40 hours in court and trial-related meetings.
As onerous as it sounds, this is time well spent. “Doctors take this very seriously,” said Rosenberg. “They get actively involved in the defense, especially if they have a partner who can watch the practice while they’re at trial or preparing for it. That’s a problem for solo doctors.”
Insurers often require physicians to attend every minute of their trials.
Our survey found that 22% of cases were resolved within 1 year, 39% between 1 and 2 years, and 28% between 3 and 5 years; 11% dragged on for more than 5 years.
“The length of the litigation process is a top complaint by physicians,” said Dr. Lembitz. “They don’t understand why it takes so long. In some jurisdictions, the court dockets are so full that it can take 15 months before you even get there. Then lawyers bicker over depositions and experts. Some lawyers, on both sides, use delay as a strategy, believing that extending the case will work in their favor.”
“Budget crises in the states have curtailed access to courts, with fewer judges and open court dates,” agrees Dr. Anderson. “Cases take years to resolve because the parties place a fundamental difference on the value of a claim. From our perspective, if we think there is no liability by the doctor, then our settlement offer is zero. Other times, we would settle, but the plaintiff’s demand is outrageously high. It takes 2 sides to settle a case.”
Paying for Settlements to Plaintiffs: Who Pays?
Only 9% of physicians said their insurer demanded that they settle. Another 21% said the insurer encouraged a settlement. Only 2% of physicians said they had to pay part of an award from their personal funds.
“COPIC, like most insurers, has a ‘consent to settle’ clause. That means we cannot demand that a doctor settle a case she’d rather defend,” said Dr. Lembitz. “However, when we think the case is indefensible, we will provide overwhelming evidence from the doctor’s peer that she’ll lose at trial.”
It’s rare for a physician to have to pay for an award out of his or her own pocket. But it does happen. One scenario is when an award exceeds the insurance coverage in a case the insurer wants to settle, but the physician is adamant about going to trial.
“Before trial, we’ll notify the doctor of the potential of a verdict that may exceed the policy limit,” said Dr. Anderson. “If the doctor still refuses, the insurer isn’t obligated to pay anything beyond the policy limit. This happens rarely. As a practical matter, insurers will cover an excess verdict.”
Sam Rosenberg recalls a case where a famous eye surgeon decided to pay a settlement of about $50,000 from his own funds. “The carrier didn’t think he did anything wrong and wanted to go to trial. It would have taken 3-4 weeks. The surgeon figured he’d lose money by sitting in court being away from his practice for that long. So he just wrote a check to settle it.”
The Horror of Being Sued
Almost 40% of physicians who were sued said the experience of being sued was either “horrible, one of the worst experiences of my life” or “very bad, disruptive and humiliating.” Some 29% of physicians said “I no longer trust patients. I treat them differently” as a result of being sued.
For many doctors, the lawsuit affected many aspects of their life, not just their practice. Some comments:
- “The man who sued had his children leave phone messages for me and the other doctors involved, saying I was a murderer. And I was not even the child’s doctor!”
- “The lawsuit nearly caused a divorce. My wife thought I should settle to avoid the misery of the prolonged proceedings.”
- “It soured me on obstetrics, which I quit as soon as possible thereafter.”
- “It hangs over your head for years, causing you to second-guess everything you do.”
- “I still have to list the suit on all licensing applications, even though it was thrown out.”
A belief in practicing defensive medicine shone strongly from those who had been sued. This is a key finding: While the nation focuses on ways to lower the costs of healthcare, physicians who were sued are adamant that they’ll do whatever it takes to prevent being slapped with another lawsuit. Some comments along those lines:
- “It is perfectly legitimate to order every test that you feel is acceptable to prevent another suit.”
- “Don’t assume ANYTHING! If it hurts, CAT scan it.”
Little can prevent the trauma of being sued, but liability insurers and defense attorneys remind physicians that lawsuits are as common as squirrels in a park. As noted above, a large percentage of doctors can expect a lawsuit sometime in their career. Early-intervention programs that encourage disclosure and prompt settlement offers of meritorious claims can lessen the impact, however, and keep physicians out of court.
The main message to physicians being sued: You are not alone. Medscape’s results are in line with those of other recent studies. More than 42% of physicians have been sued for malpractice over their careers, and more than 20% were sued at least twice, according to a 2010 American Medical Association survey.