Be prepared for malpractice suits

October 5, 2007

Expect to be sued for malpractice. That was the stark warning yesterday from Richard Roberts, MD, JD, professor of family medicine at the University of Wisconsin School of Medicine and Public Health in Madison.One malpractice suit is filed for every 40,000 patient encounters nationally, he told the American Academy of Family Physicians 2007 Scientific Assembly, which works out to a claim every seven to eight years for most family physicians.

Expect to be sued for malpractice.

That was the stark warning yesterday from Richard Roberts, MD, JD, professor of family medicine at the University of Wisconsin School of Medicine and Public Health in Madison.

One malpractice suit is filed for every 40,000 patient encounters nationally, he told the American Academy of Family Physicians 2007 Scientific Assembly, which works out to a claim every seven to eight years for most family physicians.

"You have entered a twilight zone that will last a few months if you are very, very lucky," Dr Roberts said. The average malpractice case takes between four and seven years to move through the legal system to settlement or verdict.

Losing a lawsuit is not the major concern, Dr Roberts added. Most cases never get as far as trial and physicians win 80% of cases that reach a jury. The real concern is the toll a malpractice suit takes on the physician, his or her family, and the practice.

A recent study of 220 Chicago-area physicians who were sued for malpractice found that 90% of them evidenced some physical or psychological symptom related to the stress of the legal action. Fully 50% of the defendant physicians changed the way they practiced as a result of the suit and 10% contemplated suicide. Yet all won their malpractice cases.

"The legal system will infuriate you," Dr Roberts said. "My only advice is to get over it! You will be feeling the same kind of frustration that your patients feel when they have to deal with a healthcare system they don't understand and which runs to its own internal rhythms."

But much of the angst and frustration of malpractice actions can be avoided. The key is what Colorado malpractice insurer COPIC calls the 3Rs: Recognize: Respond; Resolve. The company encourages its covered physicians to apologize, Dr Roberts noted, and authorizes them to pay patients up to $30,000 if the physician believes it will help mollify patient or family.

According to the Government Accountability Office, only about 10% of malpractice claimants are after money, Dr Roberts continued. More often, they upset at the physician or at the practice, either because of actual malpractice, an unexpected or unfavorable outcome, or the way they were treated. Data show that about 70% of claims are filed because the patient felt that the treating physician just didn't care.

"Here is a tremendous opportunity to avoid a problem," he said. "If you apologize, you go a long way toward erasing that perception. Remember, it doesn't matter how you feel about the situation, it's all about how the patient feels."

Most experts suggest that physicians apologize any time there is an adverse or unexpected outcome, even if it is due to the natural history of the disease or injury. At the very least, an apology demonstrates empathy with the patient and family. It may not ease the physical burden of the outcome, but empathy can ease the emotional burdens.

It is also wise to apologize if a medical error occurs that was not apparent or did not cause any harm to the patient.

"If there is a malpractice event, you can bet that they will find out eventually," Dr Roberts said. "If you apologize up front, especially if you apologize before they even realize something happened, you have gone a long way toward reversing that 'doc doesn't care' attitude that is behind so many malpractice claims."