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July 31, 2013

Inside malpractice lawsuits: Why so many doctors don't see them coming

Daily Briefing

About 75% of physicians who are sued for medical malpractice say the lawsuit took them completely by surprise, according to Medscape Medical News' Malpractice Report, which examined the causes of medical litigation and its effects on defendants.  

For the report, Medscape surveyed 3,500 physicians, and about 1,400 of those physicians—or roughly 40%—said they had been sued. Only 21% of the cases detailed in the survey went to trial, while 26% were dismissed, 45% went to depositions, and 5% were settled before a verdict was reached.

Why doctors get sued

Survey respondents detailed the reasons behind their malpractice lawsuits:
  • About 35% of the physicians said they were sued for failing to make a correct diagnosis or delaying a diagnosis;
  • 17% of the suits involved failure to treat the illness;
  • 4% lack of informed consent as the reason for the lawsuit; and
  • The remaining respondents cited other reasons, such as experiencing "known side effects" and not being contacted about a malignant diagnosis after missing a follow-up appointment.  

"There are always situations on a daily basis in a doctor's office where a patient is not happy," malpractice defense attorney Sam Rosenberg told Medscape, adding that a "doctor might suspect that the patient had an injury but did not expect that a lawsuit would be filed."

Defendants don't see the suits coming

Just 1% of the physicians who were sued said they were "absolutely" expecting the suit, while 24% said they suspected a suit might be coming and the remaining 74% said they were surprised by the suit.

Alan Lembitz, CMO at professional liability carrier COPIC, notes that specialists may be especially surprised to be sued as they often have no way of knowing whether a patient is doing poorly after the patient has been handed off to other medical staff.

Among specialists responding to the survey, plastic surgeons, pulmonary specialists, and radiologists were sued the most. However, internists, primary care physicians, and OB-GYNs are sued five times as often or more than specialists, likely because missed diagnoses account for most cases, Lembitz said.

How getting sued affects a physician

About one-quarter of doctors who were sued said the experience was "horrible, one of the worst experiences of their life," but roughly half the respondents said that getting sued was "upsetting, but I was able to function" or that the experience was "unpleasant, but I've had equally unpleasant experiences."

However, nearly 30% of sued physicians said they stopped trusting patients after the legal experience. Some even quit their specialty or medicine altogether, according to the survey (Crane, Medscape Medical News, 7/24; Kane, Medscape report, 7/24).

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