Recently, Medscape released its annual Medical Malpractice Report 2019 which surveyed more than 4300 physicians in over 29 specialties regarding whether they had been sued and what happened in the lawsuit. The survey provides several interesting insights for attorneys who regularly litigate medical malpractice claims. The results include the following:
There are more malpractice claims against specialists. Specialists are sued more often than primary care physicians (62% vs 52%). Among specialists, surgeons (both general and specialized) are the ones most likely to be sued. Other specialties with high rates of malpractice claims include urology, otolaryngology, OB/GYN, radiology and emergency medicine. As noted in the report’s commentary, the reason for this may be because it can be easier to identify a specific deviation from the standard of care in the case of surgery or obstetrics compared to a case involving a patient who was receiving care over the course of months or by multiple medical professionals. In the latter case, lawyers may need to rely on several expert witnesses to prove their case and rule out alternative causes.
Failure to diagnose/delayed diagnosis is the top reason for lawsuits. In the survey, 33% of physicians sued gave this reason for the malpractice claim. The next most common reasons were complications from treatment/surgery (29%) and poor outcome/disease progression (26%). Doctors believe that the primary driver of medical malpractice claims is that patients equate a bad outcome to malpractice and have unrealistic expectations. However, a Medscape poll earlier this year revealed that “[o]ne in six physicians estimated that they make diagnostic errors every day.” While these errors may not cause harm, attorneys and expert witnesses are often tasked with helping to identify which claims are legitimate and which are not.
More than half of physicians were very surprised to be sued. Prior studies have shown that hospital facilities with a higher number of satisfied patients tended to also have lower malpractice claim frequency, which supports the conclusion that there is a human element underlying many claims. Often, when claims are brought there were pre-existing issues with the doctor-patient relationship that were not addressed. As a result, there is an opportunity to reduce malpractice claims by instituting appropriate internal policies and improved communication. This opinion was echoed by doctors in the Medscape study with 48% stating that better communication and rapport with patients could help avert lawsuits.
Few cases are decided by a verdict in favor of one party. Not surprisingly, few cases go to trial. One-third of cases settled before trial and 3% settled during trial. Another 36% were dismissed. Only 11% were resolved by a verdict for the doctor and 3% by verdict for the plaintiff. Many insurance companies representing doctors do not want to risk going to trial and being hit with a large verdict. In fact, 39% of doctors reported insurance companies encouraged them to settle and 20% required them to do so. This is consistent with medical malpractice trends identified in the Aon/ ASHRM Hospital and Physician Professional Liability Benchmark Analysis. Although that study projected that the number of claims would remain the same in 2020, claim severity, including defense costs, were projected to increase 2 percent annually and the rate of losses greater than $5 million would continue to increase. Higher verdicts drive insurance companies to settle rather than litigate.
Documentation is essential. The number one thing that doctors said they would do differently after being sued was to have better chart documentation (18%). Expert witnesses will frequently be called upon to review medical records and use them as a basis for testimony regarding whether the doctor met the appropriate standard of care. If documentation is incomplete or contains errors, it is very detrimental to the physician’s case.
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