Physicians

Malpractice Claims Feel Endless Because…They Are.


I am very fortunate to have never been sued. That is not necessarily because of my amazing ability as a physician. I always practiced in Veterans Affairs medical centers, where my status as a federal employee meant I would not get sued by my patients. I also had an incredibly appreciative patient population.

But I know that most of my physician peers have been sued, successfully or unsuccessfully, at least once in their careers. And I know that these lawsuits take an emotional toll upon them. To make matters worse, malpractice lawsuits have a nagging tendency to drag themselves out for months upon months. Consider this figure, from a study led by an economist at the RAND Corporation. It shows that malpractice claims related to temporary injuries take a median of a year to resolve, while those dealing with fatalities or permanent injuries take a median of 18 months.

Indeed, in those cases involving fatalities or permanent injuries, a fifth of claims take 3 years or longer. The result of this dragged out process is that physicians not only have to deal with being sued, but also have to cope with the fact that those suits hang over their heads for years at a time. A typical neurosurgeon, for example, can expect to spend more than a quarter of his or her career with an open malpractice claim:

Our malpractice system is badly broken. Research from the Harvard malpractice study suggests that lawsuits are essentially distributed randomly, and do not successfully target poor health outcomes that are the result of medical mistakes, although some more recent studies question that finding. But however successful or unsuccessful lawsuits are at targeting bad medical practice, no one I have spoken with believes that neurosurgeons deserve to spend a quarter of their careers waiting to find out if they will be determined to have practiced negligently. Moreover, it is quite plausible that having a lawsuit hanging over their heads causes physicians to practice defensive medicine, a factor most people think contributes to high healthcare expenditures.

It is a tragedy that political discussions about healthcare reform have become so polarized. If Republicans and Democrats had been willing to work together, they might have been able to agree on a way to reform our malpractice system. But they haven’t, so our deeply horribly flawed system persists.

How do you like that thought hanging over your head?

Peter Ubel is a physician, behavioral scientist and author of Pricing Life: Why It’s Time for Health Care Rationing and Free Market Madness and his new book Critical Decisions. He teaches business and public policy at Duke University. You can follow him on his personal blog or his regular Forbes column, where this post first appeared.

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30 replies »

  1. I have been an Ob-Gyn for 38 years. I have been sued several times. I have made mistakes, being human. I still believe that I am a good doctor and have done my absolute best for my patients. I also believe that the system is broken. The solution is to separate the assigning of compensation for injuries from the assigning of blame. A brain injured baby is no less damaged if the injury occurred by chance than if it was the result of negligence. A humane society would offer the same amount of support to the parents no matter the cause. Instead we make it a lottery when we include the legal process. Some get millions, most get little or nothing.

    Would it not make sense to award compensation on the basis of injury? Would it not make sense to allow a panel of other doctors, lawyers, judges or juries to decide the issue of negligence or incompetence? Imagine a system that treated all equally and did not leak 30-40 percent of the compensation to lawyer contingency fees.

    New Zealand has a system like this and I do not believe that its citizens have suffered as a result.

  2. 4th year medical student here. Great post. For the doubters out there: We have some training in QI, and as a part of it we discussed malpractice. I wish I could cite the study (if you really want I could probably find it), but the vast majority of medical errors that cause harm don’t result in legal action. That, for me, is the major reason the system is broken. We aren’t actually holding people accountable for mistakes. Something must be changed. The second part of all this, that there is no malpractice in a majority of suits brought, is proof that the solution is NOT just more lawsuits. Somehow, the system must sue smarter, not more. In the study I related above, quality of doctor-patient relationship contributed most significantly to whether a lawsuit would be filed. Actual wrongdoing was near the bottom of a list of variables. Until we successfully tie legal action to actual wrongdoing in the medical field, we’ll just get more lawsuits from angry patients, more angry doctors, and an ever growing divide between the two.

  3. It’s not that it’s “moderated”, it’s that it just disappears after clicking “submit”. When I re-try I get “Didn’t you just say that?”

    If there is any non-digital moderator I wish you would post my very pertinent post link!! I’m sure after that Legacy will agree with me. :>)

  4. Welcome to the club dude.

    This is not a democracy, the is a “moderated site” and the moderators didn’t like what you said.

    Get over it.

  5. No defense attorneys are competent. I know quite a few of them and they are generally intelligent, well educated and well meaning people.

    He/she is just working in an dysfunctional, badly designed system.

  6. “John Edwards made his millions on junk science”

    The conservative’s refuge, no discussion of the facts necessary. Like global warming is “junk science”.

    You talk as if the defendant’s lawyer is incompetent – you know the one the insurance company hires at high prices as well.

  7. Over the last 25 years, I have reviewed well over 100 malpractice cases. I have probably given about 50 depositions.

    There are plenty of cases out there with merit. I would say that almost 50% of the cases I review I can’t defend.

    On the other hand, judges and juries are not able to distinguish what does and doesn’t have merit. In my city, most jurors barely have a high school education. They hear all kind of BS expert witness testimony and have no good way to evaluate most of it other than the way the expert dresses, how he/she carries him/herself, etc.

    Furthermore, what gets penalized is bad results, not bad medicine. John Edwards made his millions on junk science and “bad babies”, not on malpractice

    So:
    1) The majority of medical errors don’t result in suits
    2) The majority of malpractice cases don’t have merit
    3) The majority of judges and juries can’t tell the difference

  8. “As for the urban myth about lawyers loosing 10 to get the on big lottery win, I don’t buy it. ”

    I buy it. My wife is a patent attorney who worked for a combined specialty law practice that also does medical malpractice. She knows their cases. On average they win or settle about 1 in 10 cases. The others are either dismissed or the lawsuit is withdrawn before reaching some kind of final adjudication.

    That means their “win” percentage is only 10%, yet their profits last year were over 3 million dollars per partner with gross revenues at nearly 100 million dollars.

    When you can win only 10% of the time and still make a fortune, that means the lawsuit industry is broken.

  9. 97% of OB/GYNs in Las Vegas have been sued at least once.

    You tell me what is more likely:

    1. 97% of ob/gyns are truly incompetent/negligent
    2. Lawyers in Las Vegas like playing the lawsuit lottery and so they sue everyone, throwing shit at the wall and seeing what sticks

  10. Blake, no lawyer here or in the family. I don’t like most lawyers and if you read my comment you would have noticed an agreement with Rick Lippin about there being TOO many lawyers.

    As for the urban myth about lawyers loosing 10 to get the on big lottery win, I don’t buy it. How many John Edwards do you know – and what would you have done if your daughter was sucked into a pool drain because of poor or overlooked design?

    What’s missing here is all the low to moderate claims that go un-litigated because they hold no promise of a big payday. Examine Florida’s med/mal law and you’ll find the struggle needed by plaintiff’s attorney to even get to the court.

    “But there are plenty that are just looking for a quick buck for their ‘pain and suffering’.”

    And how would you enlist the services of a psychic to work though the facts and determine better than a court could do? Could I say that “there are plenty” of defendants looking for cover for errors/malpractice? I’ll bet it’s the old 80/20 rule – 20% of the docs account for 80% of the claims because their governing body can’t find the balls to discipline them.

  11. @Peter1 – Either you’re the second lawer on this trail (Jardinero1 being the other), or you’re the same person using a different name. Either way, yes, valid plaintiffs do have an emotional, physical and financial toll. But there are plenty that are just looking for a quick buck for their ‘pain and suffering’.

    As far as the lawyers and the tragically difficult paying of ‘all expenses until he wins’ – as I’ve heard from several lawyer colleagues – it’s a VC/pharma investing game to them. You put in the work for 10 companies/ drugs/lawsuits, and most tank. But the 1 of 10 that hits pays for the other 9 and gives you enough capital to be extremely well compensated. Someone hand me a bucket so I can get the water out of my boat before I drown in my pool of tears….

  12. “And I know that these lawsuits take an emotional toll upon them.”

    “It shows that malpractice claims related to temporary injuries take a median of a year to resolve, while those dealing with fatalities or permanent injuries take a median of 18 months.

    Indeed, in those cases involving fatalities or permanent injuries, a fifth of claims take 3 years or longer. The result of this dragged out process is that physicians not only have to deal with being sued, but also have to cope with the fact that those suits hang over their heads for years at a time.”

    Yes docs it’s ALL ABOUT YOU. Have you considered the emotional toll it takes on plaintiffs who have to cope financially while waiting for a resolution?

    “But I know that most of my physician peers have been sued, successfully or unsuccessfully, at least once in their careers.”

    Trouble is docs think the successful ones still had no merit.

    “There are just too many lawyers in the US chasing too few dollars.”

    I agree Dr. Rick. But in the case of contingency the lawyer pays all expenses till he wins – not a small burden in high expense malpractice suits.

  13. There are just too many lawyers in the US chasing too few dollars. I have called for the phasing out of 1/3rd of US law schools by the year 2020. That doesn’t exactly address our very broken medical malpractice system. But it may help?

    Dr.Rick Lippin
    Southampton,Pa

  14. Baloney again,

    A lawsuit against someone who is not responsible is an attempt to throw poop and see what sticks.

    People who are falsely accused – like someone who is only on the chart but bore no responsibility for the mishap, should be compensated for their time and trouble.

    Of course no judge would ever do that, in order to do that he would have to find the suit against them frivolous.

  15. The other professionals typical carry the same multimillion dollar limits of liability as physicians. They are no less “juicy”.

  16. I don’t think most people really care what emotional toll a malpractice case takes on a doc. They assume that we are big boys and can take care of themselves.

    What they don’t understand is the HUGE price they pay for the right to sue. Every day I see tens of thousands of dollars of tests done to “CYA” – cover your ass.

    And it gets worse every year.

  17. Baloney, there are plenty of frivolous suits that have no merit that are settled with payment.

    Most judges wouldn’t know whether or not a case lacks merit if the case hit them with a 10 foot pole.

  18. I agree, that it doesn’t make you culpable to be named. So what? The lawsuit is the process to determine who is culpable.

  19. These other professionals don’t get sued as often as physicians and they rarely gripe about lawsuits or demand “tort reform”. This is probably because they accept responsibility for the fact that their actions can harm people and, for the most part, take active steps not to harm people. Maybe the medical profession would be better off taking the same approach instead of grumbling about the “broken malpractice system”.

    This could only have been written by a lawyer. These other professionals don’t get sued as often, not bec they so wonderfully accept responsibility and deliver such great service, but because they are less easy and profitable marks. Sherie is absolutely right. The issue isn’t about taking responsibility – it’s about not blanket smearing everyone for the sake of blame and profit, esp when someone is not responsible for a particular outcome.

    And while we’re on the topic of responsibility, I wouldn’t mind the right to sue patients for not following advice, doing what they’re recommended, and as r13 mentioned initially, for not disclosing the truth because they are afraid of having to take responsibility for their own lives and results.

  20. OK I’ll tell. Bubba and Jardinero will think I’m a terrible physician. I’ve been involved in lawsuits twice. The first was a case with merit – against the surgeon. I got named because I was on the chart as the anesthesiologist of record. I got dropped from the suit, but still have to report that I’ve been sued. The second case also had merit, but not against me. I was named because I was in the room. Because I had been asked to come help. Dropped again, but also on my record. The reason physicians hate malpractice claims is not because they don’t want to be held responsible for their mistakes. It’s that they don’t want to be held responsible when they have done nothing wrong.

  21. Woah woah woah Jardinero – you’re assuming that every time a physician gets sued that doctor has actually done something harmful. This is absolutely not true. Patients sue everyone in the room, everyone in the chart, the hospital, everyone. Most people named get dropped when no culpability is found, but those people all still have to report that they were named in a lawsuit. Being sued does NOT mean that you have harmed someone. Not by a long shot.

  22. A suit is only frivolous if it is dismissed for lack of merit. If the defendant or his assigns settle or if it goes to trial, then it has merit.

  23. GREAT point Jardinero,

    Now that I think about it, I can think of several kindergarten teachers and a realtor in New Jersey that need suits filed against them

    Any stats on the number of judgments against realtors in the five years following the bubble?

    And shit – while you’re at it – care to look up the number of judgments filled against lawyers for filing frivolous suits in this country?

  24. Malpractice: Doctors say, “Broken for me but not for thee”.

    Other professionals like lawyers, accountants, school teachers, insurance sales people, real estate agents and engineers face potential tort liability for errors and omissions which they may commit. It is a fact of life that you are liable for your errors and omissions in the work you do. These professionals also pay through the nose for E&O or professional liability insurance to mitigate against the risk of financial loss from any claims owing to tortious conduct. These other types of professionals get sued and their carriers pay.

    I am reasonably certain that most physicians, facing a loss owing to the conduct of one of the other aforementioned professions would demand their right to recovery. I doubt seriously these doctors would say the malpractice system is broken for these other types of professionals.

    These other professionals don’t get sued as often as physicians and they rarely gripe about lawsuits or demand “tort reform”. This is probably because they accept responsibility for the fact that their actions can harm people and, for the most part, take active steps not to harm people. Maybe the medical profession would be better off taking the same approach instead of grumbling about the “broken malpractice system”.

  25. I have worked in a VA hospital and I have worked privately. The difference is profound. I am sorry to say that I have been involved in a lawsuit that has continued for several years. Everything written here is true – it hangs over your head, makes you second guess every decision you make and every patient interaction. It corrupts what I always thought of as a sacred relationship – the patient gives me the gift of laying hands on them. As I am a surgeon, that privilege includes the trust to allow me to physically cut them.

    The patient I cared for who had a bad outcome in large measure because of their own unwillingness to disclose a prior condition. Had the lawyeres invovled not seen a potentially large pay day, the suit would not have come to pass. There is no consequence to the legal system to file suit – unlike in France, the plaintiff’s attorneys are paid by contingency. Other than a few hours of work to prepare for a case that may not be paid for if they do not win, they have no down side risk. And those few hours are more than compensated for by the incredibly large pay days of a few sensational cases. I believe that we, as physicians, should all be held accountable and that we should all strive for our best professionally. But the system as it stands does not accomplish this goal. Moreover, it doesn’t hold others accountable or foster the care – or the relationships – that we would hope to have with those caring for us and being cared for by us.

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