U.S. physicians saw a decline in malpractice lawsuits during the pandemic, likely the result of performing fewer procedures during lockdown, according to the Medscape Malpractice Report 2021.
A total of 4,358 doctors across 29 specialties participated in the 10-minute online Medscape member survey, conducted from May 21 through Aug. 28 this year.
In the past year, 42% of primary care physicians were sued, down from 52% in 2019, the most recent year of the survey. Likewise, specialists saw a decrease in lawsuits, with 56% being sued in 2020 through mid-2021, compared to 62% in 2019, according to the report.
However, in 2021, plastic surgeons and general surgeons were sued the most (83%), followed by orthopedists (81%) and urologists (80%).
“Outside circumstances do play a role in the amount of lawsuits,” the report’s author, Leslie Kane, senior director at Medscape Business of Medicine, told Fierce Healthcare. “One of the phenomena noted during COVID was that people were on Zoom meetings, often for hours a day, and had time to look at their faces in-depth and detail. This definitely led to a larger demand for plastic surgery and more potential for lawsuits.”
About half of all U.S. doctors have been sued at least once, exacting a heavy burden on their time, reputation and emotional health, no matter the outcome. Most often, the suits allege failure to diagnose medical problems at all or in a timely fashion or to treat complications following a procedure.
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None of the Medscape survey respondents reported being sued for a reason related to COVID-19, although some physicians (13%) expressed concerns that they could find themselves in that predicament in the future.
The majority of physicians (86%) noted they were at least somewhat surprised when they found out they were being sued for malpractice. One in 4 physicians indicated they no longer trust patients. “Although many wish they could know in advance which patients would probably sue,” the report noted “there's no magic formula.”
Kane told Fierce Healthcare “the survey is also important because it illustrates the difference between physicians’ and patients’ perceptions of standard of care,” with 83% of doctors saying the lawsuit wasn’t warranted.
“Physicians understand the standard of care, and they understand the risks of treatment. But patients often just understand the outcome—‘Did everything turn out the way I wanted?’ That’s a different issue,” she said. “It’s also possible that some trial attorneys insinuate to patients that treatment could have been better.”
Even though about 83% of suits are decided in the doctor’s favor, about 30% of survey respondents said the lawsuit had a negative impact on their medical career.
“If they could go back in time, physicians who were sued had plenty of things they would do differently,” the Medscape report noted. “Better chart documentation is consistently named as something they’d improve upon.”
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Plaintiffs who sue physicians frequently receive financial compensation, whether they settle or prevail in court, the Medscape report pointed out while elaborating that few claims result in a trial.
In response to Fierce Healthcare’s request for comment, Gerald Harmon, M.D., president of the American Medical Association (AMA), issued a statement noting that “the Medscape report echoes what previous AMA reports have shown: getting sued is not an uncommon event for physicians. Even though the vast majority of claims are dropped, dismissed or withdrawn, the heavy cost associated with a litigious climate takes a significant financial toll on our health care system when the nation is working to reduce unnecessary health care costs.”
Harmon added, “preserving quality and access in medicine, while reducing cost, requires fairness in the civil justice system. Every dollar spent on the broken medical liability system is a dollar that cannot be used to improve patient care.”
Indiana led the nation as the state with the most malpractice lawsuits, followed by New York, Pennsylvania, Illinois and New Jersey, according to the Medscape report. Reasons include the extent of tort reform, litigious culture, number of physicians in the state, patient demographics and the breadth of legislative efforts to reduce frivolous lawsuits.
“Together with state and specialty medical associations and other stakeholders,” Harmon said. Harmon told Fierce Healthcare that “the AMA is pursuing both traditional and innovative medical liability reforms to strike a reasonable balance between the needs of patients who have been harmed and the needs of millions of Americans who need affordable, accessible medical care.”