Every year, according to a recent study from the New England Journal of Medicine, a typical physician has about a 7% chance of being sued for medical malpractice.
Surgeons almost certainly will face a malpractice claim sometime during their career. Neurosurgeons, for instance, have a 19.1% chance of being sued in a given year, while that number is 18.9% for thoracic and cardiovascular surgeons and 15.3% for general surgeons.
It is true that the majority of malpractice cases are decided in favor of the physician, but consider that, according to an earlier New England Journal of Medicine study, almost 40% of malpractice claims did not involve any medical error. That suggests doctors are not infrequently involved in the malpractice process even when they didn’t make a mistake.
A malpractice suit is tremendously disruptive for doctors, and is something to be avoided at all costs. Being sued is associated with a higher rate of suicide and the emotional scars sustained during a lawsuit stay with doctors forever. Some physicians compare the stress of a malpractice trial to facing death:
Surviving a lawsuit is akin to overcoming a death, said Dr. Firestone, the California psychiatrist and attorney. Doctors go through phases of denial, grief and acceptance. “[The impact] varies from individual from individual, but it could last a lifetime,” he said.
And these indirect costs of a lawsuit aren’t covered by malpractice insurance, according to the NEJM study:
Physicians can insure against indemnity payments through malpractice insurance, but they cannot insure against the indirect costs of litigation, such as time, stress, added work, and reputational damage.
So while the actual financial risk most doctors face during a malpractice case is relatively low, the probability of being sued is high, at over 7% annually. Even if a case is settled, or if the doctor wins in court, the physician sustains a tremendous amount of emotional damage. It’s no wonder that most would want to avoid that experience at all costs, and wouldn’t hesitate resorting to “defensive medicine” in order to do so.
Instead, I continue to argue for a non-adversarial malpractice system — a no-fault system that Sweden uses, for instance — which would compensate injured patients quicker and encourage open discussion of medical errors, while sparing innocent physicians the ordeal of an emotionally draining malpractice experience.