The doctors most likely to hear, 'We'll see you in court'

More than half of providers have been sued for malpractice—but the likelihood of facing a legal challenge varies significantly by specialty, according to Medscape's Malpractice Report 2017.

Here's your cheat sheet for understanding health care's legal landscape

For the report, Medscape surveyed 4,137 physicians across more than 25 specialties between Aug. 25 and Oct. 6. Overall, the survey found that 55% of respondents said they had been sued for malpractice, a 15% increase since Medscape's previous malpractice report in 2013.

The specialties most likely to be sued

According to Medscape, specialists were more likely than primary care physicians (PCPs) to be sued for medical malpractice. The survey found that 13% of specialists said they had been sued individually, while 50% said they had been named in a lawsuit with multiple defendants. In comparison, 11% of PCPs said they had been sued individually, and 41% said they had been sued as part of a group of physicians.

The rate of medical malpractice lawsuits also varied substantially among specialties. The top 10 specialties most likely to be sued, according to the survey, were:

  • Surgeons, 85% of whom said they had been sued;  
  • Ob-gyns & women's health specialists, 85% of whom said they had been sued;
  • Otolaryngologists, 78% of whom said they had been sued;  
  • Urologists, 77% of whom said they had been sued;
  • Orthopedists, 76% of whom said they had been sued;  
  • Plastic surgeons and specialists in aesthetic medicine, 73% of whom said they had been sued;  
  • Radiologists, 70% of whom said they had been sued;  
  • Emergency medicine specialists, 65% of whom said they had been sued;  
  • Gastroenterologists, 62% of whom said they had been sued; and
  • Anesthesiologists, 61% of whom said they had been sued.

Meanwhile, only 29% of psychiatrists and 28% of dermatologists said they had been sued, making them the specialties least likely to be named in a malpractice lawsuit, according to the survey.

Accordingly, the survey found that the specialties most commonly sued tended to have the highest malpractice insurance premiums. For instance, in New York, a general surgeon might have an annual malpractice insurance premium of $141,600, while an internist might pay only $37,800.

Among all physicians who reported being sued for medical malpractice, 49% said they had been sued between two and five times over the course of their career. Those physicians included PCPs (18%), surgeons (11%), and OB-GYNs (11%).

Other key findings

The survey also identified the most common reasons for medical malpractice lawsuits among all respondents:

  • Failure to diagnose or a delayed diagnosis (31%);
  • Treatment or surgery-related complications (27%);
  • Poor outcomes or progression of illness (24%);
  • Failure to treat or delayed care (17%);
  • Wrongful death (16%);
  • Patient sustained an unusual injury (9%);
  • Medication errors (3%);
  • Poor record of instructions and education for the patient (3%);
  • Inappropriately obtained or failure to get informed consent (2%); and
  • Did not follow safety procedures (2%).

The survey also identified the most common outcomes among providers who had been sued:

  • 30% said their lawsuit(s) were settled prior to trial;
  • 14% said their lawsuit(s) were dismissed within a few months;
  • 12% said they received a verdict from the judge/jury in their favor;
  • 9% said their lawsuit(s) were ongoing;
  • 9% said they were dismissed from their lawsuit(s) before settling;
  • 7% said their lawsuit(s) were dismissed by the court;
  • 6% said they were dismissed from the lawsuit(s) before trial;
  • 5% said the plaintiff(s) opted to dismiss the lawsuit(s) before trial;
  • 2% said the plaintiff(s) received a favorable verdict from the judge/jury; and
  • 2% said their lawsuit(s) were settled at trial.

The survey also found that most plaintiffs received a financial award, with:

  • 35% of physicians involved in a malpractice lawsuit reporting that the plaintiff received up to $500,000;
  • 33% reporting that the plaintiff received up to $100,000;
  • 17% reporting that the plaintiff received up to $1 million;
  • 6% reporting that the plaintiff received up to $2 million; and
  • 5% reporting that the plaintiff received more than $2 million.

Four percent of respondents reported that the plaintiff did not receive a monetary reward.

According to the survey, almost half of physicians who had been involved in a medical malpractice lawsuit said the experience did not change how they viewed patients or health care. However, 26% said the suits affected the doctor-patient relationship, while 6% left the practice setting. An additional 3% said they decided to change their insurer and 2% said they bought more malpractice insurance.

According to the survey, most physicians involved in a malpractice lawsuit (83%) do not believe that apologizing would have made a difference, while 15% said they weren't sure. Two percent said they believed it would have made a difference.

The survey also asked physicians what they thought would be the most effective way to deter a future lawsuit. According to the survey:

  • 53% of respondents said improving communication and rapport with the patient was one of the most effective ways to avoid malpractice lawsuits;
  • 53% said having cases reviewed by a medical panel;
  • 53% said capping noneconomic damages;
  • 45% said making the plaintiffs who lose their lawsuits responsible for all attorney and legal fees;
  • 28% said bar attorneys from taking on malpractice suits on a contingency basis;
  • 24% said trying malpractice lawsuits before a health court; and
  • 24% said curbing physician error (Commins, Health Leaders Media, 11/15; Medscape Malpractice Report 2017, 11/15; Finnegan, FierceHealthcare, 11/15).

Here's your cheat sheet for understanding health care's legal landscape

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