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AMA Report: The Almost Inevitability of Medical Malpractice Lawsuits

The AMA’s Division of Economic and Health Policy Research reported that one-third of physicians will have been sued for medical malpractice. If you’re over 50 years old, then the rate jumps to almost 50% while for those under 40 only 8% have been sued. Female physicians are less likely than their male counterparts to have been sued. Not surprisingly, 63% of ObGyns have had to deal with a lawsuit, compared to psychiatrists who reported a 16% rate. While the plaintiff does not prevail in the vast majority, that is cold comfort for the emotional toll it takes on the provider and the attendant economic costs to the insurance and legal industries.

Medical liability tort reform including measures such as affidavits of merit to weed out frivolous claims, limits on noneconomic damages, and medical review panels have had some measure of success. There is research that ‘apology and disclosure programs’ may be successful, including in those cases where an adverse outcome could not have been prevented. There are some states that have laws governing apology for medical malpractice, where a physician apology cannot be used as an admission of fault in court. With these laws, an apology can mitigate the results of an unanticipated or poor medical outcome. All these measures must be balanced with both providers’ and patients’ constitutional rights to due process.

In addition, assumptions about provider practice in relation to fear of medical liability are not always based in fact. For example, the New England Journal of Medicine reported on outcomes in three states where legislation altered malpractice standards for emergency physicians. The hypothesis was that providers over-ordered studies because they were practicing ‘defensive medicine’. With new legislation in these states that raised the bar for plaintiffs, a patient now needed to demonstrate that the doctor had “actual, subjective awareness” of “the likelihood of serious injury” but nevertheless proceeded with “conscious indifference.” There was no change in physician practice as measured by imaging rates, average charges, or hospital admission rates.