Malpractice: how likely are doctors to get sued in their careers?

Nearly everyone has heard about the medical malpractice controversy. Most doctors call it a crisis, saying, among other things, that physicians are retiring early because of it or altering their practice — not taking on what they might see as patients more likely to sue. Nonphysicians aren’t so sure about that.

What is clear is that malpractice insurance premiums, what a doctor pays every year to an insurance company and which is required by all states I know to practice, are also climbing inexorably. This seems to be happening even some states that have enacted various kinds of limits on malpractice awards, even though these measures were intended, among other things, to halt these rises in premiums. In other states, notably Mississippi, this may not be the case.

It’s also clear that the entire system we have of malpractice also does a terrible job with the two things it’s supposed to do: sanction doctors who practice bad medicine, and thereby protect the public, and compensate patients who have been injured by bad medical practice. In fact, neither of these things happen.

Meanwhile doctors fear malpractice lawsuits. This has both psychological and practical effects on physicians. There is the general perception that doctors practice a lot of what is called “defensive medicine,” doing things we otherwise would not do if we did not fear getting sued if we didn’t do them. So emergency departments get a whole lot of head CT scans, even when the probability of finding anything significant is remote. It only takes one scan you didn’t do, even though best practice guidelines say you shouldn’t, to land you in court. It’s unknown how much defensive medicine affects healthcare, but it certainly is a real thing — I’ve seen it in action, and I’m sure I’ve done it myself now and then. You can read a good article about it’s magnitude here, but it clearly costs billions. It’s also inherently unsafe: unnecessary testing can lead to unnecessary procedures, and thus unnecessary risk to patients.

But how justified are doctors’ fears of getting sued? How likely in a lifetime of practice is a doctor to face a malpractice claim? That’s really the bottom line. If I’m lecturing to a medical school class, I’d like to be able to tell them what their chances are over a lifetime of practice. I’m nearly 60 years old and have not (yet) been sued — is that a fluke, or am I the norm? A recent study in the prestigious New England Journal of Medicine finally gives us some answers to these questions.

Not surprisingly, the risk of getting sued varies with the specialty. Neurosurgeons and anesthesiologists are high risk. So are obstetricians, since complications of childbirth leading to injury are frequent causes for lawsuits. Pediatricians get sued for those cases, too, because there often is a pediatrician involved in the care of the infant. Neurosurgeons, on average (it does vary from place to place), have a nearly 20% chance each year of getting sued. For pediatricians, it’s about 3%, although the rate for my own subspecialty of pediatric critical care is much higher than it is for general pediatricians.

There is an important caveat in these data, one that you can’t tease out of the article: not every doctor in a given specialty is equally likely to get sued. That is, some doctors, one would think the worst ones, are more likely to get sued. The problem is that this is not the case. Research has shown that overall competency is not correlated with getting sued. To doctors, it seems almost random, driven by luck. This is what can drive them crazy, as well as lead to more defensive medicine.

The nub of the article, though, is lifetime risk: how likely is a doctor to get sued in a lifetime of practice? The answer is — very, very likely. For those in high risk specialties, the chances are virtually 100%. So, if you become an obstetrician, you will be sued at least once. Even if you practice a low-risk specialty, like pediatrics, you have a 70-80% lifetime risk of getting sued.

More than anything else, those numbers emphasize that our current malpractice system is unsatisfactory. Think about it — it’s saying that every single neurosurgeon in America, and three-quarters of all pediatricians, are accused of malpractice at least once in their career. Malpractice is not the same thing as making a mistake; we all make mistakes, large or small. Malpractice is clear negligence leading to patient injury.

As it turns out, physicians accused of malpractice, if the case goes to trial, are far more likely to win than are the plaintiffs — the doctors win about 85% of the time. Clear-cut cases, in which the doctor very likely was negligent, tend to be settled without trial. But not always, and this is another aspect that upsets doctors; it is typically the insurance company, not the doctor, who decides to settle the case, even though the doctor may want to fight it out in court. So a financial decision by an insurance company creates a blot on a doctor’s record that lasts for the rest of his or her career. And it is a blot. Every time I renew my medical license or hospital privileges I have to answer, not only if there are any malpractice judgements against me, but also if there are any pending claims that haven’t even gotten to court yet. To be accused is to have the stain already.

Again, the system we’ve got is both a bad way to discipline and even remove from practice bad doctors, and an unfair and inefficient way to compensate patients who really have been injured by malpractice. We’ve got to do better. My own opinion is that some sort of medical injury board, sort of like a workman’s compensation board, should handle most of these. Both experts and members of the public would be represented. But if people can bypass such an arrangement, or sue anyway if they don’t get what they want, such boards would simply add another layer to the already slow and complicated process.