34% of physicians have been sued: How to best minimize your risk

David O. Barbe
Allison W. Shuren

The AMA released three new trend reports demonstrating the high frequency and cost burden of medical liability claims.

“Information in this new research paints a bleak picture of physicians’ experiences with medical liability claims and the associated cost burdens on the health system,” David O. Barbe, MD, MHA, president of AMA, said in a press release. “The reports validate the fact that 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.”

In the first report, the AMA evaluated how often physicians are subjected to medical liability claims. The report found that it is common for physicians to get sued, with 34% having a claim filed against them during their career. The likelihood of getting sued increases with age — almost half (49.2%) of physicians aged 55 years and older have been sued vs. 8.2% of physicians aged 40 years and younger.

The occurrence of liability claims varies greatly between specialties, according to the report. General surgeons and OB/GYNs have the greatest risk of being sued, whereas pediatricians have the lowest risk. More than half of general surgeons and OB/GYNs have been sued before the age of 55 years.

“Even though the vast majority of claims are dropped, dismissed or withdrawn, the heavy cost associated with a litigious climate takes a significant financial toll on our health care system when the nation is working to reduce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,” Barbe said.

The second report examined indemnity payments, expenses and claim disposition and found that the average expense incurred on medical liability claims increased 64.5% from 2006 to 2015, amounting to $54,165. Dropped, dismissed or withdrawn claims (68.2% of all claims in 2015) still contributed to the cost burden, averaging a cost of $30,475 per claim in 2015 and contributing to 38.4% of total expenses, according to the report.

In the third report, the AMA assessed the annual changes in medical liability insurance premiums from 2008 to 2017. The report revealed that more premiums increased than decreased since 2015, which was a reversal of the trend observed earlier in the study. In addition, 12% to 17% of premiums rose from the prior year since 2010.

Healio Internal Medicine spoke with Allison W. Shuren, MSN, JD, a partner at Arnold & Porter Kaye Scholer LLP, about how physicians can best minimize their risk of malpractice and how to best defend themselves when a medical liability claim is filed against them.

“To avoid malpractice claims, physicians must ensure that they are delivering the standard of care to patients and are keeping knowledgeable of the standards of care and changes in their community depending on what state that a physician practices in,” Shuren said.

She noted that physicians are not tied to the “standard of care box,” because many areas of medicine, such as oncology, do not have a standard of care or experiential data to share with patients.

“In those instances, physicians can minimize the risk of malpractice by being really transparent with patients,” she said. “Informed consent is more than just reading a page. Rather, physicians should incorporate the patient in decision making about their care and make sure that they really understand the decisions that they are making and the risks involved with them.”

In previous years, risk managers often taught physicians to not say anything when outcomes did not go as expected, which likely frustrated patients, according to Shuren.

“When patients think their physicians are being transparent with them, understand the risks going in and feel like the physician actually cares about them, it’s much harder for them to sue the physician or feel like they need that level of retribution,” Shuren said. “Shared responsibility and shared decision making between the physician and patient is key to minimizing risk.”

In the case of a lawsuit, physicians should identify why they chose a certain course of treatment for a particular patient and the evidence that supported their decision, she said. Physicians who are using investigational treatments with their patients should ensure that they have community support and can back up their decisions to use such treatments with valid reasoning, such as multiple other treatments failed or would not work for the patient and the investigational treatment was performed in the best interest of the patient, Shuren noted.

“Physicians should really embrace their malpractice insurers,” she said. “Many of them have really phenomenal resources for physicians and stay up to date on new technology and procedures that are coming out and try to give some guidance or solid informed consent.”

“The need to practice defensive medicine is not necessarily the answer to all of this, but the need to be transparent and clear with patients so they understand and have reasonable expectations,” she continued.

Shuren noted that some patients will never have reasonable expectations and feel like suing is something that they need to do. – by Alaina Tedesco

Disclosures: Healio Internal Medicine was unable to confirm relevant financial disclosures at the time of publication.

David O. Barbe
Allison W. Shuren

The AMA released three new trend reports demonstrating the high frequency and cost burden of medical liability claims.

“Information in this new research paints a bleak picture of physicians’ experiences with medical liability claims and the associated cost burdens on the health system,” David O. Barbe, MD, MHA, president of AMA, said in a press release. “The reports validate the fact that 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.”

In the first report, the AMA evaluated how often physicians are subjected to medical liability claims. The report found that it is common for physicians to get sued, with 34% having a claim filed against them during their career. The likelihood of getting sued increases with age — almost half (49.2%) of physicians aged 55 years and older have been sued vs. 8.2% of physicians aged 40 years and younger.

The occurrence of liability claims varies greatly between specialties, according to the report. General surgeons and OB/GYNs have the greatest risk of being sued, whereas pediatricians have the lowest risk. More than half of general surgeons and OB/GYNs have been sued before the age of 55 years.

“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,” Barbe said.

The second report examined indemnity payments, expenses and claim disposition and found that the average expense incurred on medical liability claims increased 64.5% from 2006 to 2015, amounting to $54,165. Dropped, dismissed or withdrawn claims (68.2% of all claims in 2015) still contributed to the cost burden, averaging a cost of $30,475 per claim in 2015 and contributing to 38.4% of total expenses, according to the report.

In the third report, the AMA assessed the annual changes in medical liability insurance premiums from 2008 to 2017. The report revealed that more premiums increased than decreased since 2015, which was a reversal of the trend observed earlier in the study. In addition, 12% to 17% of premiums rose from the prior year since 2010.

Healio Internal Medicine spoke with Allison W. Shuren, MSN, JD, a partner at Arnold & Porter Kaye Scholer LLP, about how physicians can best minimize their risk of malpractice and how to best defend themselves when a medical liability claim is filed against them.

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“To avoid malpractice claims, physicians must ensure that they are delivering the standard of care to patients and are keeping knowledgeable of the standards of care and changes in their community depending on what state that a physician practices in,” Shuren said.

She noted that physicians are not tied to the “standard of care box,” because many areas of medicine, such as oncology, do not have a standard of care or experiential data to share with patients.

“In those instances, physicians can minimize the risk of malpractice by being really transparent with patients,” she said. “Informed consent is more than just reading a page. Rather, physicians should incorporate the patient in decision making about their care and make sure that they really understand the decisions that they are making and the risks involved with them.”

In previous years, risk managers often taught physicians to not say anything when outcomes did not go as expected, which likely frustrated patients, according to Shuren.

“When patients think their physicians are being transparent with them, understand the risks going in and feel like the physician actually cares about them, it’s much harder for them to sue the physician or feel like they need that level of retribution,” Shuren said. “Shared responsibility and shared decision making between the physician and patient is key to minimizing risk.”

In the case of a lawsuit, physicians should identify why they chose a certain course of treatment for a particular patient and the evidence that supported their decision, she said. Physicians who are using investigational treatments with their patients should ensure that they have community support and can back up their decisions to use such treatments with valid reasoning, such as multiple other treatments failed or would not work for the patient and the investigational treatment was performed in the best interest of the patient, Shuren noted.

“Physicians should really embrace their malpractice insurers,” she said. “Many of them have really phenomenal resources for physicians and stay up to date on new technology and procedures that are coming out and try to give some guidance or solid informed consent.”

“The need to practice defensive medicine is not necessarily the answer to all of this, but the need to be transparent and clear with patients so they understand and have reasonable expectations,” she continued.

Shuren noted that some patients will never have reasonable expectations and feel like suing is something that they need to do. – by Alaina Tedesco

Disclosures: Healio Internal Medicine was unable to confirm relevant financial disclosures at the time of publication.