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Slightly more than 40% of family physicians were named in a malpractice lawsuit in 2021, and, while that number is significant, it’s an eight percentage-point decrease from two years prior, according to new data published by Medscape.
Michael Moroney, an attorney with Flynn Watts in Parsippany, New Jersey, said the COVID-19 pandemic had something to do with the dip in malpractice suits.
“People haven’t been able to get out,” he said. “This includes getting out to have medical procedures done and getting out to file lawsuits. Like a lot of other businesses, there was a lot of slowdown during COVID.”
Also, many plaintiffs’ attorneys have been reluctant to file lawsuits during this time, according to Charles Lohrfink, senior managing partner at White Plains, New York-based Voute, Lohrfink, McAndrew, Meisner and Roberts.
“Patients are so grateful for the medical care that healthcare providers have received, where doctors and nurses have worked themselves to the bone trying to save the lives of patients with COVID, that plaintiff’s attorneys are reluctant to bring cases right now,” said Lohrfink. “They don’t want to deal with juries who feel grateful to the medical community for what it has done since COVID.”
WHAT’S THE IMPACT?
At 43%, failure to diagnose or delayed diagnosis was the top reason for lawsuits in 2021, consistent with the findings from 2019. Poor outcome/disease progression came in second (23%), followed by wrongful death (14%), complications from treatment/surgery (13%), and failure to treat or delayed treatment (11%).
Other reasons included an abnormal injury suffered by the patient (9%), poor education and documentation of patient instruction (6%), errors in medication administration (4%) and lack of informed consent (2%).
The most common amount paid annually for malpractice insurance was between $5,000 and $9,999 (27%), the report found. Malpractice insurance premiums can differ depending on location, the litigation climate, specialty and the extent of the chosen coverage. Physicians in Rhode Island, Pennsylvania, New York and New Jersey pay the highest malpractice costs, whereas those in North Dakota pay the lowest.
More than half of family physicians, 55%, said they were able to identify which patients were likely to bring a suit.
“Sometimes the clues are there, but physicians don’t notice or pay attention to them,” said Lohrfink. “Certain doctors have said to me, ‘I knew from the beginning that this patient was trouble. It’s just the way the patient acted, how they always questioned everything I said. Anything I said was never enough.’ If you feel that the patient might be litigious, or you simply get an uncomfortable feeling, then refer the patient to a specialist or suggest a second opinion.”
Eighty-four percent of the family physicians surveyed said the lawsuits brought against them were unwarranted. In 39% of cases, the lawsuit was settled before trial, and in 13% of cases the physician was dismissed from the suit within the first few months. In only 3% of cases did a judge or jury return a verdict in the plaintiff’s favor.
More than one-third of family physicians spend upward of 40 hours preparing for their defense. In about 45% of cases, the lawsuit process lasted between one and two years.
THE LARGER TREND
More than half of physicians said the outcome of the lawsuits was fair, the data showed. In 47% of cases, the plaintiff was awarded an amount less than or equal to $100,000. Some 63% of those surveyed said the lawsuits did not negatively affect their overall medical careers.
No physicians reported being named in a malpractice lawsuit for a COVID-19-related allegation.
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