Malpractice: What Will Get You Sued

Malpractice: What Will Get You Sued

Congratulations, you are a practicing physician! Get ready to be sued. We hate to be the bearer of bad news, but before you finish your medical career there is a 75% chance that you will be named in a medical malpractice suit. The sooner you know the reality of medical malpractice the better you can prepare yourself for it.

Why do you need to know there is a good chance you will be sued?

You can’t prepare for threats that you don’t know exist – surveys show that the majority of physicians do not expect to get sued. Despite the litigious society that we live in and the widespread news of malpractice lawsuits, it appears that the majority of physicians are focused on the care of their patients, not legal outcomes. A survey of 4,000 physicians by Medscape found that 70% of physicians who were sued were caught completely by surprise, and only 27% even suspected a suit might be filed. Anecdotal physician notes in the Medscape survey reflect their dismay:

“Surprising and upset to have the action filed after spending many hours caring for patient in the OR and SICU after very high-risk surgery. During this time there was no indication the patient nor family was anything but very appreciative for his care.”

Filing a malpractice suit doesn’t mean winning one

The good news is that few plaintiffs are paid and the majority of suits never go to trial.  Of the physicians surveyed by Medscape, “Only 20% of the lawsuits went to trial, and only 16% went as far as a verdict. Forty-one percent of the physicians reported that their lawsuits were dismissed, and about a third (32%) reached a settlement before trial. Among those whose trial reached a final verdict, only 3% of verdicts were in the plaintiff’s favor.”

So who is getting sued?

A study of nearly 41,000 physicians, published in the New England Journal of Medicine, reports that “by the age of 65, 75% of physicians in low-risk specialties had faced a malpractice claim, as compared with 99% of physicians in high-risk specialties.”

For a more granular look, we go once again to the Medscape study that showed malpractice rates by specialty;

  • Most likely to be sued: OB/GYN 85%, Surgeons 83%, Orthopedists 79%
  • Men vs. Women: Male physicians, 64%, female physicians, 49%, reported being sued  

Of the physicians who were sued, they practiced in:

  • Office based solo practices: 70%
  • Single specialty groups: 64%
  • Office based multi-specialty groups: 53%
  • Outpatient clinics: 47%

Surgery

Inpatient and outpatient care both generate suits. National Medical Malpractice Facts reports that surgery errors accounted for about 34% of medical malpractice claims. On the outpatient side, errors in diagnosis made up about 46% of all claims.  

The most common reasons for malpractice suits are:

  • Failure to diagnose: 31%
  • Patient suffered an abnormal injury: 31%
  • Failure to treat: 12%
  • Poor documentation of patient instruction and education: 4%
  • Errors in  medication administration: 4%
  • Failure to follow safety procedures: 3
  • Improperly obtaining/lack of informed consent: 3%

The Maricopa County Medical Society in Arizona (MCMS) published a list of malpractice concerns that is as realistic as it is relevant. We are not proposing that physicians practice medicine specifically to avoid malpractice suits, but these are valid concerns that deserve awareness.

1. The ACA: High deductibles are causing patients to delay or skip needed care. As a primary care physician or specialist in charge of high-risk patients, don’t let this prevent you from educating them about important screenings.

According to MCMS: In one reported case, a doctor saw the patient for years but never offered him a full physical exam. The patient was ultimately found to have stage IIIB colon cancer. After his death, his family sued the doctor. The doctor claimed that the patient was only seeing him for blood pressure checks and did not want a “full examination,” but the court didn’t buy that argument.

EHR2. Electronic Medical Records. An article in Healthcare IT recently highlighted the problems associated with EMR (EHR) that can leave healthcare professionals open to malpractice suits.

In one case an anesthesiologist didn’t have critical information available in his views of the EHR that would have told him a patient wasn’t a candidate for the type of anesthesia used for a certain procedure. The patient ended up being paralyzed from the waist down.

3. Evidence-based guidelines. These are highly touted as guidelines to follow by hospitals, payers, patients, and even clinical decision-support systems in EHRs. They may even be written into group practice or hospital policy. However, malpractice attorneys say you should follow these guidelines at your own risk and they are a weak defense against lawsuits. Some of them may be outdated, too general for the patient case at hand, too vague or too narrow for good medicine.

4. Team care. Yes, this is the model of practice in most hospital settings, but beware. Often there is no one in charge and team members pass off responsibility for care decisions. Several care providers can result in the lack of a patient-physician bond, and that is usually where medical malpractice suits begin simmering. Make sure your care team has clear goals, members have clearly defined roles and there is accountability and communication.

Doctor On Smartphone5. Smartphone distractions. The MCMS story tells it all here:

An anesthesiologist was named in 2014 malpractice case involving a patient death during heart surgery in 2011. According to depositions in the case obtained by a Dallas newspaper, the surgeon accused the anesthesiologist of looking at a cell phone or tablet and failing to notice the patient’s low blood-oxygen levels for 15-20 minutes. The outcome of the case has not been reported.

So where does that leave us?

Medical malpractice suits can damage your reputation and forever change the tenor of your interactions with patients. Most physicians believe that saying “I’m sorry” would have had no impact on whether or not a suit was filed. Yet conscientious patient care must be delivered. There are no absolute answers, but there are good solid guidelines with which to protect yourself.

  1. Know your medical malpractice statutes by state.
  2. Document, document, document.
  3. Always respond to inquiries from your medical board in a timely manner
  4. Know your malpractice insurance coverage, to the letter
  5. Work with an attorney to make sure you are covered, and that you understand the coverage
  6. If you work for a hospital, have your malpractice coverage reviewed by an attorney for limitations and exposure.

Then get on with the business of practicing medicine. Life happens and so do malpractice suits. The world needs you and your healing and both are rife with risk.


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