See you in court: the malpractice risk to physicians

Lawsuits against physicians aren’t going away — even if the cases go nowhere in court.

Malpractice risks: ©ST Taurus - stock.adobe.com

Physicians have a relatively low chance of being sued over a short period. The longer they practice, the greater the chance of a legal claim, even though most lawsuits end with no finding of negligence or error, according to a recent study by the American Medical Association (AMA).

Based on the results, an estimated 31% of physicians have been sued at some point in their careers. Claim frequency varies based on specialty, gender and age, according to the Policy Research Perspective paper “Medical Liability Claim Frequency Among U.S. Physicians” by Jose R. Guardado, Ph.D.

“Even the most highly qualified and competent physicians in the U.S. may face a medical liability claim in their careers; however, getting sued is not indicative of medical errors,” AMA President Jack Resneck Jr., M.D., said in a news release announcing the study. “All medical care comes with risks, yet physicians are willing to perform high-risk procedures that offer hope of relief from debilitating symptoms or life-threatening conditions,” Resneck said. “When physicians are sued, two-thirds of civil liability claims are dropped, dismissed or withdrawn without a finding of fault. When claims proceed to trial and are decided by a verdict, the defendants prevail in nearly 9 out 10 cases.”

Overall risk

The risk of being sued over a short period of time is relatively low for all physicians. In 2022, 1.8% of physicians reported they were sued in the previous year. That figure was down from 2.4% in 2018 and 2.1% in 2020.

The study period, 2020 to 2022, may show a reduction in the short-term probability of being sued due to the COVID-19 pandemic because of a general decrease in patients using health care services, Guardado said.

Once in court, a lawsuit “is not necessarily indicative of medical error,” the study said. From 2016 to 2018, 65% of claims that closed were dropped, dismissed or withdrawn. Among the 6% of cases that were decided at trial, the defendants won 89% of them.

Age

“Longer-term risk of getting sued increases with age,” the policy paper said. “This is not surprising given that physicians with more years in practice have had more exposure to risk.”

How much is the increase? Guardado found 46.8% of physicians aged 54 years or older have been sued, while 9.5% of physicians aged 40 years or younger have been sued. On average, physicians aged 54 years and older had a 1-to-1 claim rate, or 100 per 100 physicians, while physicians under age 40 had 11 claims per 100 physicians.

Among family physicians and general practitioners, age adds to the likelihood of a lawsuit, with 50.9% getting sued during their careers,
 on average.

“It seems to be just a matter of time or, more specifically, of longer exposure before a physician is sued,” the research paper said.

Medical specialty

Field of practice had the widest variation in claim frequency and risk of liability. “In general, surgical specialties are at highest risk and internal medicine subspecialties are at lowest risk,” the AMA news release said.

Obstetricians/gynecologists, general surgeons, other surgeons and orthopedic surgeons are at highest risk of being sued during their careers. About 62% of OB-GYNs and 59.3% of general surgeons have been sued in their careers to date. Even before age 55, 43.9% of general surgeons and 47.2% of OB-GYNs already have been sued, according to the AMA.

By comparison, allergists/immunologists and hematologists/oncologists had the lowest rates of legal claims, at 7% and 8%, respectively.

Gender

Women physicians face lower liability risk than men, with 23.8% of women previously being sued, compared to 36.8% of men. On average, women had 42 claims per 100 physicians, fewer than men, with 75 per 100 physicians.

Guardado’s analysis found women physicians still are less likely to be sued than men physicians, even controlling for age and specialty.

Employer

Employed physicians had lower claim frequencies that practice owners. From 2020 to 2022, just 1.7% of employed physicians were sued the previous year, and 28.7% of employed physicians had been sued. By comparison, 2.3% of owners were sued in the past year and 35.4% of owners had faced a legal claim.

AMA also has published “Medical Liability Reform – Now! 2023,” a 35-page guide summarizing various initiatives to change “the broken medical liability system.”

Richard Payerchin is an editor with Medical Economics.