If you know that a medical error or bad outcome has occurred, you may be somewhat expecting to hear from a lawyer—or at the very least, from an unhappy patient who wants you to "do something." Yet most malpractice lawsuits come as a jolting and unpleasant surprise. More than three quarters (87%) of physicians sued were either very or somewhat surprised by the action, and almost one half (49%) of all physicians sued said there was no identifiable trigger event that would have alerted them to know that a lawsuit might be coming. That's one of the insights from Medscape's Malpractice Report 2017, the result of a survey in which more than 4000 physicians told about their lawsuit and court experiences, and how it affected their lives and their relationships with patients. The report also reveals physicians' thoughts about how the case affected their reputation, what they might in hindsight do differently now, and what advice they have for other physicians. Is the malpractice situation in the United States getting better or worse? And what do physicians who were sued have to say about whether their lawsuit was fair and what they should have done differently? Some key findings of the report include: The frequency of malpractice lawsuits is fairly steady, with a slight decrease. In Medscape's 2015 Malpractice Report, 59% of respondents reported getting sued. However, in 2017, more than one half of physicians (55%) responding had been named in a lawsuit. Of those, 13% of physicians said they were the only person named in the lawsuit; 48% said they were among several people sued. Most physicians are surprised to be sued. Among doctors who were sued, 58% were very surprised and 29% were somewhat surprised. Almost one half (49%) of physicians said there was no trigger incident that would have alerted them to expect a suit. Over one third (35%) said there was such an incident, whereas 16% said they didn't recall the circumstance. Fully 89% of physicians said they felt the lawsuit was unwarranted. Being sued often affects physicians' relationships with their patients. More than one half of physicians (51%) sued said that after the lawsuit, their attitudes or behaviors changed. More than one quarter (26%) said that they no longer trust patients and now treat them differently; 6% left their practice setting, and 3% changed insurers. The five most sued specialists are surgeons (85%), obstetricians/gynecologists (85%), otolaryngologists (78%), urologists (77%), and orthopedists (76%). Least likely to be sued are pediatricians (42%), physical medicine and rehabilitation physicians (37%), nephrologists (33%), psychiatrists (29%), and dermatologists (28%). Failure to diagnose/delayed diagnosis (31%) and complications of treatment/surgery (27%) were the predominant reasons for lawsuits among all physicians sued. Next was poor outcome/disease progression (24%) and failure to treat/delayed treatment (17%). Rapport Will Rarely Prevent a Lawsuit Many physicians are surprised at being sued because they felt that they had good communication and rapport with the patient, and didn't expect to be sued by someone with whom they felt they had a positive relationship. But much of that conventional "wisdom" is wrong, says medical defense attorney John M. Fitzpatrick, with Wheeler Trigg O'Donnell LLP in Denver, Colorado. Fitzpatrick says it's somewhat of a myth that if a doctor and patient have good rapport, the patient most likely won't sue. "The medical field has been preaching about the bedside manner, saying that a doctor should let the patient know that you did your best, no matter how it turned out; and if you're warm and fuzzy, the patient won't sue you," says Fitzpatrick. "But bedside manner is very overrated. "Doctors think that if they had good rapport with the patient, they won't get sued, and then they're surprised when it happens. But many patients see the opportunity to get some money, and they or their lawyers know that someone being sued will pay them to go away," says Fitzpatrick. A physician may overestimate the depth of the rapport with the patient. And sometimes it's not the patient's initial desire to sue, but a family member or someone else talks them into it. Malpractice defense attorney James L. Griffith, Jr, with Reger Rizzo & Darnall in Philadelphia, Pennsylvania, said, "This issue of surprise raises a familiar question: Why did the patient who put trust in their physician for surgery or other medical conditions stop seeing the physician and choose instead to see a lawyer? Was the doctor trying to avoid discussing a bad outcome? Not being honest? Was the doctor too busy to recognize that there was a dissatisfied patient who felt that the physician was not listening, or did not care? "I suspect that part of the problem is that in some cases, when a patient calls the office to get an appointment, they are told that the doctor has an opening 6 weeks from now," says Griffith. "You may not get to speak to the doctor without appearing for an appointment. There might not be an opportunity to tell the doctor what is happening. However, you can get an immediate appointment at the lawyer's office." Mistakes, medication errors, and carelessness may account for many malpractice cases, but Fitzpatrick says that a major reason is that physicians are an easy target for people seeking big bucks. Even innocent physicians may want to settle just to end the suit. And plaintiff attorneys are very aggressive in attracting clients to sue doctors. Money Is a Key Driver in Bringing Lawsuits "Everyone is trying to blame doctors, but most lawsuits have little or nothing to do with errors," says Fitzpatrick. Often, the plaintiffs have nothing to lose and the attorney has taken the case on contingency. However, although the desire for a payout is a motivating factor, there are instances in which physician standard of care contributed to the lawsuit. David B. Troxel, MD, of The Doctors Company, a medical malpractice insurer in Napa, California, says, "Our data show that over 80% of all malpractice claims involving physicians insured by The Doctors Company resolve with no indemnity payment to the plaintiff. Likewise, over 80% of claims that go to a jury trial result in a defense verdict for the physician. This indicates that the vast majority of adverse outcomes resulting in malpractice claims do not involve medical practice below the standard of care." 'Shotgun' Lawsuits Target Multiple Physicians One reason for the high number of physicians sued is that many are named in lawsuits citing multiple physicians and clinicians. "Plaintiff attorneys are naming a lot more hospitals in lawsuits, because more doctors are becoming employees of hospitals. Hospitals have deep pockets and are willing to defend their physicians," Fitzpatrick says. 'Shotgun' lawsuits often name everyone who could potentially have interacted with the patient and theoretically could be at fault. "A lot of employed physicians have their own policies, beyond what the hospital provides," says Fitzpatrick. "The plaintiff attorneys will name every possible physician in hopes of finding some who have their own insurance. The plaintiff attorneys are looking for someone who is stand-alone and could turn against the hospital." High productivity targets and rushed medical care, which have become more frequent in today's environment, may also affect the frequency of lawsuits. Griffith says, "The cost of medical care has escalated significantly, and patients expect more than they are getting. They sometimes wait long periods before being seen, and then they are lucky if the doctor spends more than a few minutes with them. There is no rapport with the physicians." "When things don't turn out as the patient expected, the explanation they seize upon is that the doctor was negligent," says Griffith. "Lawyer advertising is also a factor in planting the idea that bad results equal negligence." Other Key Results From the Survey The Challenges of Diagnosis Primary care physicians were most often sued for failure to diagnose/delayed diagnosis (43%), poor outcome/disease progression (25%), failure to treat/delayed treatment (20%), and wrongful death (20%). In contrast, specialists were most often sued for complications of treatment/surgery (31%), followed by failure to diagnose/delayed diagnosis (28%), poor outcome/disease progression (24%), and failure to treat/delayed treatment (16%). Dr Troxel commented, "A study of diagnosis-related malpractice claims by The Doctors Company shows that factors that may cause diagnostic error include first-impression or intuition-based diagnoses; narrowly focused diagnoses influenced by a known chronic illness; failure to create a differential diagnosis; impaired synthesis of diagnostic data from various sources (such as medical history, physical examination, diagnostic tests, or consultations); failure to order appropriate diagnostic tests; context errors; failure to follow diagnostic protocols; system-related errors (such as poor communication or electronic health record design flaws); and human-factor errors (such as impaired judgment, fatigue, or distractions)." "Diseases are simply difficult to diagnose," says Fitzpatrick. He cites cases he has defended in which he feels it would be nearly impossible for most physicians to diagnose. Many cases occur in the emergency department and involve necrotizing fasciitis, which in its early stages appears like the flu. "A mother comes in saying that her child has fever and flu symptoms; her other children are home with the flu. At that stage, most doctors would have no reason to keep the child in the hospital and give them an IV. But by the time it becomes apparent that it's necrotizing fasciitis, it's late-stage and children are losing limbs, which have to be amputated to save their lives. Many of those parents will bring lawsuits." "Physicians are trained that if they hear hoof beats, think horses, not zebras," says Fitzpatrick. "But what if the disease is not only a zebra, but an albino zebra? Who's going to do all the tests on the chance that something could be an albino zebra?" "A study by the RAND Corporation based on claims data provided by The Doctors Company shows that the average physician spends over 4 years of a 40-year career fighting malpractice claims—the majority of which end up with no indemnity payment," says Dr Troxel. "The good news is that physicians today are being sued less frequently than in the past. Our data show that the number of claims has decreased from nearly 12 per 100 doctors in 2003 to about 6 per 100 doctors in 2016." "The top 5 specialties all perform major surgical procedures where the risk for complications is high," says Griffith, the Pennsylvania attorney. "Many patients complained that they were never told about the risks or complications. They were handed a consent form and told to sign it by a nurse." "I also suspect that there is a failure in patient screening," says Griffith. "Better evaluations may lead to patient exclusion or the recognition that an alternative procedure creates less risk. Sometimes a referral to a higher level of specialist is best for the patient and the doctor." More Malpractice Results From Physicians The vast majority of lawsuits were settled or dismissed before a judge or jury verdict was rendered. Also, 32% of cases were settled (either before or at trial) and 38% were dismissed (either before or at trial). Good news for physicians: In 12% of cases, the jury/judge found in favor of the physician; in only 2% of cases did the jury/judge find for the plaintiff. Those percentages were very similar to those in 2013: 12% had a verdict in the doctor's favor and 2% in the plaintiff's favor. Lawsuits exacerbate a physician's time crunch. One third of physicians spent more than 40 hours preparing for their defense, including getting records together, meeting with their attorney, preparing for depositions, and discussions. And 18% spent more than 50 hours in court and trial-related meetings. Malpractice suits can drag on for years, causing stress for a physician over a prolonged period. For 30% of physicians, resolution of their lawsuit took 3-5 years. For 10% of physicians, it took more than 5 years. Although many healthcare leaders say that the "sorry works" philosophy of admitting to a medical error (along with other activities) can help to avert a lawsuit, 83% of physicians say they believe that it would have made no difference regarding their getting sued. To discourage malpractice lawsuits, physicians favored better communication and rapport with patients, having a medical panel that screens cases for merit, and placing caps on noneconomic damages. Plaintiffs in malpractice cases often walk away from malpractice suits with a substantial financial award. Over two thirds of physicians (68%) said that the plaintiff received up to $500,000, and 17% said the plaintiff was awarded $500,000 to $1 million. Five percent received over $2 million. Only 4% of plaintiffs received nothing. Looking back, physicians who were sued say they would have done things differently. Better chart documentation was cited most often (22%), followed by never having taken on the person as their patient in the first place (12%). Ten percent would have ordered tests that would have "covered them" if they were sued (ie, practiced defensive medicine). Why Are Some Doctors Sued Multiple Times? "It's a combination of factors," says Fitzpatrick. "I've defended doctors for 30 years, and I can count on one hand the percentage of doctors who are incompetent. Still, it's a fact that there's more pressure on doctors to see more people in a shorter time. That could be a factor." Says Griffith, "Many physicians refuse to change their procedures, patient communications, and office practices. I represented a physician who was sued six times for failure to get an informed consent, despite my best efforts to get him to change his patient instructions. When the seventh suit was filed, I notified the insurer that I refused to represent him." Fitzpatrick adds, "When I see someone who has had eight or nine lawsuits, I'm amazed that they can still get insurance. Hospitals are trying to be more careful about credentialing. Some doctors aren't as good or well trained as others. Some doctors have failed their boards three or four times. Major hospitals require their physicians to be board-certified; if a physician failed three times, he or she would have to wait another 5 years to take it again." Despite the potential of malpractice lawsuits being great when caring for a high-risk patient, most physicians (84%) said that they have not turned these patients away. Says Griffith, "There are high-risk procedures that may turn out adversely. But there is also a 'high-risk patient.' That's one who has seen multiple physicians, none of whom met the patient's satisfaction." "On the initial visit, listen carefully, and if you detect this history, put your ego on hold and realize that no matter what you do, you will never please this patient," says Griffith. "If the slightest problem sets the patient off, you will get sued. Politely inform the patient that you do not believe that you will be able to help him or her, and do not accept them as a patient. Do not renew prescriptions or do any medical treatment. The trouble you do not get into avoids the need for a lawyer to get you out of it." What Are the Most Effective Ways to Discourage Lawsuits? Politicians and medical organizations have promoted various ways to reduce the number of malpractice lawsuits. Better communication, having a medical panel screen cases for merit, and placing caps on noneconomic damages were each cited by over one half (53%) of physicians as the most effective ways to discourage malpractice lawsuits. A more aggressive approach was making the plaintiff responsible for all attorney and legal fees should they lose. Source
