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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022
| Contributor Information
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
A malpractice lawsuit is one of the most challenging experiences that a physician will ever go through. Medscape's Malpractice Report 2021 surveyed more than 4300 physicians in 29 specialties who described why they were sued, how the lawsuit worked out, and the impact of their ordeal on their practice and their relationship with patients. In this slideshow, family physicians share their experiences: the outcome of the lawsuit, what was hardest, and what they learned from going through the process.
(Note: Some totals in this presentation do not equal 100% because of rounding.)
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Family physicians reported fewer lawsuits in 2021 compared with 2 years ago (pre-COVID), when 49% of family physicians said they had faced a claim. "COVID certainly has something to do with it. People haven't been able to get out. This includes getting out to have medical procedures done and getting out to file lawsuits. Like a lot of other businesses, there was a slowdown during COVID," says Michael Moroney, JD, an attorney with Flynn Watts, LLC, Parsippany, New Jersey. (Respondents could choose more than one answer.)
In addition, many plaintiffs' attorneys have been reluctant to file lawsuits during this time, says attorney Charles Lohrfink, senior managing partner at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, New York. "Patients are so grateful for the medical care that healthcare providers have received, where doctors and nurses have worked themselves to the bone trying to save the lives of patients with COVID, that plaintiff's attorneys are reluctant to bring cases right now. They don't want to deal with juries who feel grateful to the medical community for what it has done since COVID."
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Similar to physicians overall, failure to diagnose/delayed diagnosis was the top reason for lawsuits by 2021 family physician respondents, consistent with family physician responses in 2019.
"I saw the patient as an ED visit follow-up but otherwise was not part of the patient's regular healthcare team. The patient had a delayed diagnosis for cancer and sued anyone who was ever part of the healthcare team." —Family physician
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Malpractice insurance premiums can differ depending on location, litigation climate, specialty, and the extent of coverage chosen. Physicians in Rhode Island, Pennsylvania, New York, and New Jersey pay the highest malpractice costs, whereas those in North Dakota pay the lowest, according to experts at Physicians Thrive, an advisory group that helps physicians manage their finances. A physician in New York can expect to pay at least five times more than one in California, Ohio, or Tennessee would pay for the same level of coverage.
Alicia Gallegos | March 22, 2022 | Contributor Information
Similar to physicians overall and family physicians in prior years, most family physician respondents were surprised by the lawsuit.
"The surprise of the notice was the worst part. It was a 40-year-old female who had to have a total abdominal hysterectomy with bilateral salpingo-oophorectomy. Unable to remove one ovary due to adhesions, prolonged anesthesia, and morbid obesity. She was aware one ovary remained. Later, she had issues with the remaining ovary, requiring second surgery, and she stated she was unaware that she had an ovary remaining when the medical record clearly stated she had one remaining."—Family physician
"One case, I left a lap sponge in. The nurse said the count was correct. The university was sued. It was not a surprise we settled. The second case, I was surprised. We operated and the patient had a wound infection which healed well." —Family physician
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Similar to physicians overall, more than half of family physicians said they were able to identify who would bring a suit.
"Sometimes the clues are there but physicians don't notice or pay attention to them," says Lohrfink. "Certain doctors have said to me, 'I knew from the beginning that this patient was trouble. It's just the way the patient acted, how they always questioned anything I said, anything I said was never enough.' If you feel that the patient might be litigious or you simply get an uncomfortable feeling, then refer the patient to a specialist or suggest a second opinion."
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Similar to the overall sample of physician respondents in 2021 and consistent with previous years, most family physicians felt the lawsuit against them was not warranted.
"I'm sure there is actual malpractice occurring out there in the world of medicine, because physicians are human and mistakes do occur; but in many clients I've had, some of these cases border on the ridiculous," said Paul Walker, a New York City–based malpractice attorney at Walker Medical Law, who represents physicians and other healthcare professionals.
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
More than one third of family physicians said that their case was settled before trial, which is similar to physicians overall and aligns with family physician responses from prior years.
"Most cases do not go to trial," said Lohrfink. "When a case goes to trial, our experience has been that we are successful on behalf of the physician much more often than not. In our experience, most cases are resolved by the jury in favor of the physician. The back story is that if we truly feel that a jury could perceive merit to the plaintiff's case, we'll make an honest effort to resolve the case fairly ahead of time. We would only go to trial if we feel we have a strong case or if the plaintiff and his or her attorney weren't interested in what we believed to be a reasonable and fair resolution prior to trial."
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
More than one third of family physicians spent upward of 40 hours preparing for their defense, similar to physician respondents overall. The timeframe was slightly less than what family physicians reported in 2019 (42%). Several respondents complained about the hours lost while going through court proceedings and the time away from patients and family.
"One of the stressful parts of a malpractice suit for the physician is the large amount of time required in preparing the defense — time spent meeting with the attorney, reviewing records, and going over the questions asked at the deposition," says attorney Dennis Hursh of Physician Agreements Health Law, a firm based in Pennsylvania.
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
For most family physicians, the process took 1-2 years, which is similar to the time period reported by physicians overall and family physicians in previous years. Some suits, however, are taking slightly less time than in the past. In 2021, 5% reported that their case took more than 5 years compared with 8% in 2019.
"The worst part of being sued was the time it took out of my life, and then the uncertainty it placed in my mind about my patient care and even my desire to practice." —Family physician
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Similar to physicians overall, the majority of family physicians said that they would have done nothing differently, a slightly larger percentage than the 40% of family physicians who offered this response in 2019. However, some family physicians said they would have taken different steps if they could go back in time.
"I would have insisted on better imaging views of the x-rays which may have identified the occult fracture. And I would not have used the traction-countertraction maneuver for reduction." —Family physician
"I would have insisted my consultant come to the hospital to help with management." —Family physician
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
More than half of family physicians thought the outcome of the lawsuit was fair, consistent with the 61% of overall physicians who responded the same. However, although the outcome seemed fair, many physicians do not believe that the legal process is fair.
"I was very upset by how unfair the whole process was." —Family physician
"The legal system does not provide incentives to quickly resolve valid claims. —Family physician
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Plaintiffs who sue physicians often get a monetary award, whether they win or settle. Like physician respondents overall, the most common award to a plaintiff reported by family physicians was up to $100,000 and the second most common was up to $500,000.
"Awards to plaintiffs differ from state to state and can also differ widely even in different regions of the same state," says Peter Kolbert, JD, senior vice president, Claims and Litigation Management, Healthcare Risk Advisors, a division of TDC Group. For example, New York is "one of the more litigious states" and its awards "seem to be quite excessive."
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Consistent with past surveys and overall physicians, most family physicians did not think that an apology would have made a difference in averting a lawsuit. Other family physicians wrote that they support apologies when appropriate.
"I said 'I'm sorry' immediately, and at the child's funeral and in a card to the mother and at the end of the settlement. I was told that her ex-husband (the father of child) filed the suit soon after child's death, being told by a tertiary care hospital that not all was done for the child. The mother reportedly did not want the suit to proceed. I advocate that an apology is appropriate if heartfelt." —Family physician
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Similar to physicians in general, most family physicians in 2021 did not feel that the lawsuit negatively affected their overall medical career.
Nevertheless, from a practical point of view, "one lawsuit, unless it's really egregious and horrific, is unlikely to make much of a difference in a physician's long-term career, but a series of lawsuits could affect the doctor's privileges at his or her hospital as well as future employment, and that's much more serious," says Walker.
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Almost half of family physicians said that nothing occurred as a result of the malpractice suit, which is less than the 52% of physicians in general who chose this response. Just under one quarter of family physicians said that they no longer trust patients and treat them differently, a slightly higher response than family physicians reported in 2019 (23%). Some family physicians said that the lawsuit against them led to a career or practice change. "I switched to occupational medicine," wrote one family physician; another wrote, "I changed the unsatisfactory practice location."
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
So far, no family physicians have reported being sued for a COVID-related allegation, but legal experts say that time will tell. In some areas, plaintiffs' attorneys are advertising their services for coronavirus-related claims and suggesting what type of negligence could be grounds for such a suit. In June 2021, a Tennessee woman sued a family physician after her husband's death from COVID-19, claiming that healthcare providers failed to properly test him and rendered improper care that led to his death.
"The US has seen an enormous number of COVID-19 infections and a terrible number of COVID-19 deaths, but we have not seen a lot of lawsuits specifically around COVID-19 so far," says Kolbert. "Part of the reason has to do with state-based qualified immunities from claims dealing with the prevention, diagnosis, or treatment of COVID-19. These immunities have raised the bar for someone to bring a claim, because they recognize that the standard of care in terms of COVID-19 is evolving on a daily basis."
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Similar to physicians in general and to family physician respondents in 2019, most family physicians have not been named in a malpractice suit for the action of an NP or PA. But that might change because the role of NPs and PAs is "definitely expanding in both specialty and PCP offices," says Lohrfink.
"There really needs to be a true level of supervision and understanding on a daily basis of what the NP or PA has done with each patient, so the physician feels comfortable on a daily basis with what's going on with the person under his or her supervision. If you simply go over cases on a weekly or monthly basis, much is going to fall through the cracks and you're not truly providing the supervision that is required," Lohrfink adds.
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
Family physicians expressed about the same amount of concern as physicians overall regarding claims over COVID-related issues that took place during the pandemic (14% vs 13%). Kolbert says he anticipates that there will be three types of COVID-related claims, some of which his group has already seen: failure to prevent or treat COVID itself; failure to prevent or treat comorbid conditions in COVID patients, including patients who are dealing with sequalae of COVID or those with long COVID; and patients who did not have COVID yet are suing for malpractice because their care was affected by the healthcare system's response to the pandemic.
In the survey, family physicians shared the type of claims that they believe could stem from the pandemic:
"Failure to follow most successful treatment protocols for hospitalized patients."
"Patients misunderstanding of appropriate care and the limitations of the physicians due to unknown treatment options."
"Anything the legal community can hang their hat on."
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
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Medscape Family Physician Malpractice Report 2021
Alicia Gallegos | March 22, 2022 | Contributor Information
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Alicia Gallegos
Reporter, Medscape Business of Medicine
Disclosure: Alicia Gallegos, has disclosed no relevant financial relationships.
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