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Survey: Malpractice Cases Fall a Little During Pandemic

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About half of doctors are sued in their careers. It’s a difficult and stressful experience regardless of the outcome. In addition to the time and cost that malpractice suits can cause, they can also take a heavy emotional toll on doctors personally, in their relationships with their patients, and with their families.

In Medscape’s Malpractice Report 2021, more than 4300 doctors from 29 specialties discussed the reasons they were sued, their outcomes and how the incident affected their practice and their lives. The majority of the results were similar to those of the previous survey (2019), but fallout from the COVID-19 pandemic had an effect.

Nearly half (51%) of those who took part in the survey stated that they were named in at least one lawsuit. The data in the 2021 report were similar to those of the survey of 2019 however COVID could have had an effect on the number of lawsuits. With fewer people undergoing medical procedures during the pandemic the number of doctors who reported being involved in a lawsuiteither as an individual or as the group — decreased by 6percent for specialists prior to the outbreak and 10 percent for primary care physicians.

No physicians reported being involved in a COVID lawsuit, probably because pandemic-related executive orders granted immunity to healthcare workers. The most frequent causes of lawsuits were in line with previous studies: failure to detect the condition, and complications from treatment.

Specialized and general surgeons were more likely to be sued than other specialists. This is due to the fact that surgeons typically don’t have long-term relationships with patients and are often involved in high-risk procedures according to J. Richard Moore, JD, an attorney with Bleeke Dillon Crandall, in Indianapolis, Indiana.

Few Malpractice Cases go to trial

The majority of malpractice cases never get to trial. As per the results of Medscape surveys over the last 8 years 33% of respondents said their cases were settled before going to trial, and only 2% said that the case went all way to trial, and the plaintiff won.

Certain specialties are more successful than others. A landmark study from 2012 found that pathologists are less likely have their cases dismissed than internists. This is according to an investigation from 2012. Flynn Watts LLC attorney Catherine Flynn, JD in Parsippany New Jersey says that while there are cases that are justifiable however, most cases are more about the economic motivations of the plaintiffs rather than a negative outcome.

Generally, though, most doctors believed that the outcome of their case was fair. One internist said, “Although this was a rare condition it was at least two chances for me to catch it, and I failed.” Not everyone was happy with the outcome. One surgeon stated, “The settlement wasn’t my idea. I believe I could have won in court.

Despite generally favorable results The process is time consuming and costly. The case can take more than a year –40 percent of cases lasted between 1 to two years, a survey result that hasn’t changed over eight years. The pandemic could lead to an increase in cases.

Many physicians were surprised to discover that they were named as defendants in a malpractice lawsuit. One otolaryngologist stated, “I was surprised by this lawsuit because I was still caring about the patient, and parents had never spoken to anyone.” Moore said that this reaction is not unusual. Moore said that doctors would like to believe that there is some predictability in who is suing whom. However, the truth is that you don’t know.

Make Better Notes…and Don’t alter them

For doctors, better charting heads the list of things to change next time. Careful and extensive documentation is among the best practices for malpractice protection.

However, Michael Moroney, JD, an attorney with Flynn Watts, warns that going back after the fact and altering the evidence is a risky decision. He claims that it could create a rift in the case and cause jurors to doubt the doctor’s truthfulness.

Although the experience was definitely not pleasant, fewer than one third of doctors surveyed believed that the lawsuit negatively affected their career, and more than half said there were no changes in their career or attitude resulted from the experience however for those who did, the changes were significant.

One rheumatologist claimed that the experience “interrupted my practice as well as family life.” It made me defensive in my practice and make each patient a potential target. One internist responded by giving up medical practice and working for an insurance company.

Avery Hurt is a freelance science and medical writer.

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