Some cases of medical malpractice are so egregious—and so shocking—that you have to wonder why some doctors are allowed to continue practicing medicine.
Example: A Missouri woman was permanently disabled after her surgeon mistakenly operated on the wrong side of her brain.
You can guess how you’d vote if you were on the jury. But this and other headline-making lawsuits are exceptional cases. Most malpractice lawsuits involve gray areas…honest mistakes (alleged or proven)…or legitimate disagreements about what should or should not have been done in a particular case.
Nevertheless, patients are left to wonder: What does a doctor’s history of lawsuits tell about his/her ability to practice medicine? To learn more, Bottom Line Health spoke with Seth A. Seabury, PhD, a renowned expert on medical malpractice.
How can I find out if my doctor has been sued? There are public databases, but the availability of this information varies widely from state to state. The Federation of State Medical Boards has a database, DocInfo.org, that includes disciplinary actions taken against physicians by state licensing boards. A doctor could be disciplined for egregious negligence or for unethical or even criminal behavior. You can get similar information, including payments that were made for malpractice lawsuits, from some state medical licensing boards and/or insurance departments or state or county courts.
How often do medical doctors get sued? A survey of more than 7,000 surgeons found that nearly 25% were recently involved in litigation. If you take into account all of the lawsuits that may occur in a 30- or 40-year career, the risks are much higher.
Research I conducted with colleagues from the University of Southern California and Harvard University suggests that up to 75% of physicians in lower-risk fields—pediatrics, family practice, etc.—will eventually face a malpractice claim. For those in higher-risk specialties, such as neurosurgery, lawsuits are a near certainty.
Isn’t it true that bad doctors get sued more than good ones? It’s true that some doctors get sued more than others. A New England Journal of Medicine study that appeared earlier this year found that about 1% of doctors who had previously paid two or more malpractice claims accounted for nearly one-third of all paid claims. However, while some of these doctors may indeed provide substandard care, you can’t assume that a history of lawsuits/paid claims is a reliable indicator of a doctor’s proficiency.
Past research had found that a bad outcome is often what drives malpractice claims. A neurosurgeon who does complicated brain surgery or a cardiac surgeon who mainly treats high-risk patients will have a higher percentage of poor outcomes than doctors who treat the easier cases. As a result, they’re more likely to face multiple lawsuits during their careers.
Are these the specialties that face the most lawsuits? The study mentioned above found that four medical specialties—internal medicine, ob/gyn, surgery and general practice/family medicine—accounted for more than half of all claims.
This is partly due to volume. An internist or family practice physician sees a lot of patients. The more patients a doctor sees, the higher the risk that something will eventually go wrong. Neurosurgeons and cardiac surgeons see fewer patients, but the ones they do see have a higher-than-average risk for complications or death.
If a doctor has a terrible bedside manner, is he more likely to give substandard care—and get sued for it? I’m not aware of any evidence that a rude doctor is more likely to provide poor care than one who is warm and welcoming. However, one study did find that doctors with a more extensive history of lawsuits also had a history of dealing poorly with patients—ignoring their concerns, not communicating well, etc.
Doctors who show the most empathy—and are willing to admit to, and apologize for, mistakes—might be less vulnerable to lawsuits, but it hasn’t been proven. Some states have experimented with so-called “apology laws” to protect doctors who may worry that an apology could be used later against them in court. However, there’s no definitive evidence whether or not these laws reduce the number of lawsuits.
So do most doctors—even good ones—make a lot of mistakes? Medical errors definitely happen. The Institute of Medicine estimates that tens of thousands of patients die each year due to preventable medical errors. But there is uncertainty as to how well the malpractice system does in discerning actual medical errors from just bad outcomes.
In a number of studies, researchers reviewed the medical records of patients involved in malpractice claims. They often found evidence of medical mistakes (giving a wrong drug dose, for example), but the mistakes were usually minor. Some may have affected how well—or poorly—patients did, but it’s safe to assume that many didn’t.
According to research, there’s actually a weak relationship between medical errors and malpractice claims. A Harvard study found that about 40% of malpractice cases should never have been filed…and that many of the cases showed no evidence of mistakes or proof that patients had been harmed.
Bottom line: Malpractice law entitles patients to compensation if they were injured because their doctor was negligent, which isn’t the same as being wrong or unlucky. Practicing medicine is difficult, and sometimes doctors can do everything by the book and a bad outcome can still happen. That isn’t to say that malpractice doesn’t occur—obviously it does—but sometimes it can be very hard to distinguish between substandard care and outcomes after the fact. That’s why you have to sometimes be careful about making a judgment about quality based on the number of malpractice claims a doctor has.
