Trends in medical malpractice claims: Social perception of health care affects outcomes in the courtroom

During the past several years, social perception of health care has shifted, evidenced in plaintiff-tilted documentaries depicting one-sided versions of medical events and social media commentaries blaming clinicians for the high cost of medical care. These negative media portrayals contribute to an overall sentiment that the health care system and anyone associated with it do not have the patient’s best interest in mind.

The impact of these sentiments is now being felt in the courtroom. There has been an increase in nuclear verdicts — defined as medical malpractice jury awards of more than $10 million — even in judicial venues where jurors traditionally had favorable views of their doctors. Plaintiffs’ attorneys have changed the narrative to an “us versus the health care empire” story. The practice environment of every health care professional is affected by this trend. In a recent study of U.S. physicians, the American Medical Association found that roughly one-third of the participating physicians reported being sued at least once so far in their careers. Physicians are also at a higher risk of suicide and suicidal ideation than the general population.

Understanding the social context of litigation

Social and economic changes affect our judicial processes. Understanding these factors can help clinicians feel more in control as they work with their legal team to prepare for court.

1. Social inflation: “Inflation” is a broad term describing an increase in the cost of goods and services. “Social inflation” is more specific: When the cost to resolve medical malpractice claims is rising faster than general inflation, we call that social inflation. One driver of increasing loss costs is nuclear verdicts. Nuclear verdicts are increasing at a drastic rate: The average of the top 50 medical malpractice verdicts was $32 million in 2022, $48 million in 2023 and an alarming $56 million in 2024.
2. Juror attitudes: In the past, most jurors began a trial with the mental premise that the doctor had the patient’s best interest in mind and the patient received reasonable care until proven otherwise. Today, due to tactics by plaintiffs’ attorneys and social influences, jurors have a tendency to start with the mindset that the physician is just part of a system that only focuses on profit. That means the burden has shifted to the defense to prove otherwise.
3. Tactics by plaintiffs’ attorneys: Using so-called reptile theory, some plaintiffs’ attorneys frame the defendant as a threat to rile up jurors’ fight-or-flight responses, with the intent to have fear overcome logic. Other tactics, such as making each individual health care practitioner responsible for care outside their scope of practice, have also become prevalent.
4. Impact of high verdicts: The impact of high verdicts increases the settlement value of cases as well. The higher the verdict, the higher the demand for resolution on the next case. These high verdicts also increase the cost of health care — creating a vicious cycle.

Malpractice insurers should actively work for defense

Despite these courtroom challenges, clinicians can protect themselves by ensuring they have access to a strong defense team, before a claim is ever filed. A strong defense starts with choosing a medical malpractice insurer that actively addresses new litigation trends.

• Retaining and training top defense counsel: Ensure your malpractice insurer strategically vets experienced defense counsel. A strong insurer will provide ongoing insights and educational seminars on current plaintiff tactics and litigation trends and how to best defend against them. 
• Analyzing analytics: Is your insurer using artificial intelligence and other technologies to analyze claims and billing data from their defense counsel? These data can help determine the strength of the defense based on the players involved (judge, plaintiff’s attorney, defense counsel and experts), the jurisdiction and the return on resources spent on trial preparation.
• Third-party support: A well-rounded defense team combines defense counsel with third-party specialists. A strong team offers early witness preparation, jury selection assistance, expert databases, witness social media searches and databases of witness testimony transcripts. Defense counsel should be offered the use of a trial exhibits team that prepares interactive exhibits.
• Trial versus settlement: Your reputation is your livelihood. Does your insurer settle cases without the consent of the insured clinician? When it comes to a claim against you, make sure you’re in the driver’s seat.
• Investing in the next generation: The number of litigation attorneys has declined to a level of national concern. Malpractice insurers should be working together to help train the next generation of attorneys.

Understand who’s in your corner

From the moment you’ve been officially served legal documents, like a summons or complaint, the lawsuit has commenced. It is critical for you to immediately report any claim — or potential claim — to your insurer. Your malpractice insurer will then assign a claims specialist and defense attorney to handle the claim.

The key to winning in court and counteracting societal trends is preparation, which means preparing you to be a strong, active participant in your own defense. Experts can guide you through legal jargon, deposition engagements, arguments, verdicts and managing the stress caused by being involved in litigation.

Ask your insurer whether they offer litigation seminars with attorneys and presenters who are very familiar with the local venue, the potential jury pool, and other key aspects of the state or region that could influence the outcome of a trial. If needed, experts should be brought in to collaborate and hold roundtable talks, attend strategy sessions, and provide broader review and input on the case from a national perspective.

Changing societal perspectives and tactics from plaintiffs’ attorneys continue to create challenges. That’s why having a strong insurer and defense team on your side protects your livelihood, career and reputation.

Brittnie Hayes, Esq., is vice president of claims at The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. At The Doctors Company, 93% of members surveyed say we set the standard for the industry’s most aggressive defense, and 94% would recommend us to their colleagues. When The Doctors Company enters a courtroom, we are ready to fight and win.

The guidelines suggested here are not rules, do not constitute legal advice and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.