Sued doctors usually in jury verdicts
But even dismissed claims take long to resolve
Physicians come out on the winning end of 80% of malpractice claims that end in jury verdicts, and slightly over half of cases reaching trial are dismissed by the court, according to a new study of more than 10,000 closed malpractice claims that occurred between 2002 and 2005.1 Only about five out of every 100 claims that are litigated involve a jury verdict.
"Of that group, in almost all of the specialties that we studied, upwards of 60 to 70% verdicts were in favor of the physician," says Anupam B. Jena, MD, PhD, the study's lead author. Jena is an assistant professor of healthcare policy and medicine at Harvard Medical School and an assistant physician in the Department of Medicine at Massachusetts General Hospital, both in Boston.
"That is not to say that if you are a physician who is sued, you should fight for the chance to reach the jury stage because if you do, you have a 70% chance of winning," cautions Jena. In fact, the claims that tend to be vigorously defended are the claims that defense attorneys think are very likely to go in favor of the physician, he explains.
It takes an average of 19 months to close malpractice claims and 39 months to resolve cases that go to trial and result in verdicts, according to the study. "The time that was required to close each one of these types of claims was quite variable and quite long," says Jena. "That has implications for both physicians and patients."
Even claims that ultimately were dismissed by the judge took an average of 12 to 18 months to resolve. "In the current system, even claims that are ultimately dismissed still require substantial time and investment on the part of physicians, patients, insurers, and attorneys," Jena explains.
In many of these claims, the allegation of malpractice might be misguided. For example, the EKG and blood tests of a patient with chest pain might suggest ongoing ischemia and a high risk of further heart attack, but the patient might leave the hospital against medical advice. "As someone reviewing the case, one might think that the patient was clearly advised of the risks of leaving," says Jena. However, a plaintiff attorney might argue that the patient did not fully understand what those risks were, resulting in a lawsuit that probably ultimately would be dismissed, he says.
The length of time it takes to resolve claims is likely a major reason why physicians consistently report strong pressure to practice defensive medicine, says Jena, noting that at least 50% of claims are dismissed in court before they get to the jury stage.
"That's a comment on the merit of those claims, which incidentally require upward of $20,000 to defend. That cost doesn't account for lost practice time," Jena says. "Perhaps the most substantial cost to physicians, however, is the anxiety of having a malpractice suit that is ongoing for a year or more."
Reference
- Jena AB, Chandra A, Lakdawalla D, et al. Outcomes of medical malpractice litigation against US physicians. Arch Intern Med 2012; 172(11):892-894.
Source
For more information on malpractice litigation, contact:
- Anupam B. Jena, MD, PhD, Assistant Professor, Department of Health Care Policy, Harvard Medical School, Boston. Phone: (617) 432-8322. Fax: (617) 432-1073. Email: [email protected].
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