Five Things No One Tells You About Who Gets Sued

Being a physician-defendant in a medical malpractice lawsuit is exhausting. Even defendants  only peripherally involved frequently describe the process as extremely stressful. And many physicians say that the worst part is the sense of isolation. That was certainly true for me, and it is the direct root of my Thrive: Insight Coaching practice and public speaking today.


Why is the process so isolating?

For many of us, finding ourselves in the midst of litigation – something our teachers urged us to avoid – results in feelings of failure and loneliness. Just when we most need collegial friendship, most of us find that we have no idea who among our peers has been through it. Our uncertainty regarding who has had this experience and what their views might be leaves many at a complete loss as to where to turn for support.


Sadly, the normal emotions which may wash over us in the face of an unexpected patient outcome frequently magnify those feelings of loneliness. For pilots, parents, and healers alike, the natural response to wondering if we failed to protect someone we intended to keep safe includes elements of grief, guilt, fear, and shame. And, according to Dr. Brene Brown, internationally recognized for her research in this domain, shame drives us to isolate ourselves.

As we know, isolation is precisely what hurting humans do not need. We physicians are no different. The sheer number of people, some of them my mentors, who breathe a sigh of relief when they realize I want to learn from them by hearing their story of a patient's unexpected loss and a lawsuit proves that point. Like our patients, when we confront hardship – especially unforeseen hardship – we need to know that we are not alone.


On stoicism

Our tendency to isolate ourselves may be augmented by the fact that the culture of medicine selects for and encourages stoicism in us.

In high-stakes clinical situations, the capacity to invoke stoicism at a moment's notice can be a very useful tool. After an unexpected patient outcome and in the course of litigation, however, there are limits to the benefits of a habitually stoic stance. The challenge in an emotionally intense experience is to keep our hearts open and aware of the emotions that roll in.




Diving In

The sun and salt of Florida's Atlantic beaches are woven into innumerable memories of my childhood. A sandy-footed four- or five-year-old me balked when Dad suggested that to negotiate the biggest waves, I could bravely duck under. How right he was, though! Diving into the wave, trusting that I would emerge on the other side, was so much easier than squarely planting my feet, facing the wave head on, only to have it knock me down, sending saltwater up my nose and into my eyes.


So it goes with times of intense emotion. Better to dive into those waves than to attempt a stoic, unbending stance in the face of a six-foot wall of overwhelming. Moving into the waves is much more effective.

Lest you think I'm suggesting that you brave these waves in isolation, let me remind you that my little, inexperienced self was not permitted to face rough breakers alone. And neither would I recommend that you face intense emotional surf unaccompanied. We may not be four years old anymore, but even capable swimmers drown when conditions are too much.




What you ought to know

In the interest of reducing isolation, I aim to create a shared dialogue among physicians of all specialties around these experiences. As a starting place, I think it's helpful to know just how many American physicians are sued.

Granted, the data we have on this question is not perfect. The best study in my view was published in 2011 in the New England Journal of Medicine. The source data goes back even further, spanning a period from 1991-2005, and all comes from one major U.S. malpractice insurance carrier. By definition, therefore, federally employed physicians are excluded.

On the positive side, nearly 41,000 clinically active physicians were represented, all between 30 and 70 years of age, practicing in diverse specialties in every state and the District of Columbia. While some features of the landscape have likely shifted substantially, the highlights of this study still paint a broad picture of medical malpractice litigation in the United States.

1) Nearly all US physicians are sued at some point

These authors project that 75% of physicians in “low-risk” specialties and 99% in “high-risk” specialties will be sued by the age of 65. Read that again.

Doesn't it sound like none of us is actually at “low risk”? If you ask me, we're all in this together, and we all need access to information and support.


2) Many physicians are sued more than once

According to this analysis, almost 20% of neurosurgeons are named in a lawsuit every year. Logically, then, your everyday neurosurgeon – generally a smart, hard-working type – is sued, on average, once every five years. Some more, some less.

Elsewhere, I have read that EM physicians are now sued, on average, every 5-8 years. I know excellent physicians whose experience is just that. 

Feel free at this point to go ahead and set down the myth that only “bad” or “grouchy” or “uncaring” doctors are sued more than once. In fact, I'm starting to wonder whether things might not work the other way around.

Now that we all grasp that repeated head injuries rob young athletes of IQ points, I suddenly see the terrible stereotype of the “dumb jock” in a new way. And I can't help but notice that in the study we're considering, the five specialties most likely to be sued were all surgical.


Might it be that inadequate opportunity to recover after hard patient outcomes and inadequate support during malpractice litigation are deeply harmful to the self-confidence and evolving bedside manner of even the toughest physicians? It doesn't excuse bad behavior, but it does put the stereotypes many of us harbor in regard to certain specialties – many surgical -- in a whole new light, doesn't it?


3) Some specialties make more indemnity payments than others

These authors found that the likelihood of being sued did not necessarily correlate with the likelihood of an indemnity payment to the plaintiff. For instance, in this analysis, those practicing gynecology alone were the group 12th most likely to face a claim, but most likely for that claim to result in a payment (38% of claims). How might that uniquely affect those specialists' experience of practice? I wonder.


4) Lower-risk specialties can experience higher indemnity payments

In cases where an indemnity payment occurred, there was little correlation between the mean payment made for physicians in a given specialty and how likely they were to face a suit to begin with.

While pathologists and pediatric physicians were among the specialties least frequently named in a suit (roughly 5% and 3% annually), their mean indemnity payments were the highest (over $300K and $500K, respectively).

In other words, those specialties with the highest mean payment (when a payment occurred) are also those least likely to know colleagues who had been through the experience and most likely to end up feeling “marked” with a big, shameful, red letter “P” for payout. Yet another reason why I believe that cross-specialty dialogue around these events harbors such huge potential to benefit us all. The perspective of a thoughtful, experienced surgeon could do a suffering pediatrician or pathologist a whole lot of good!



5) Among US physicians, 7.4% face a claim every year

Many claims take roughly 1½ to 2 years to resolve. Therefore, something like 10% of practicing U.S. physicians are in the midst of litigation at any given time, at least according to this data. Ten percent!

With roughly 750,000 to a million clinically active physicians in the US, that suggests that nearly 100,000 of us are in the middle of what many will call “the hardest thing I've ever done” or “the dark night of the soul” at any one time. And that number doesn't even account for those recovering after an adverse patient outcome not attached to a lawsuit.



The exciting conclusion

Is that information overwhelming? Maybe. But, in some strange way, I also find it inspiring. Hard though this experience is, we have each other.

Your smartest med school classmate? In it. Your funniest friend from residency? In it. Your soft-spoken mentor? In it. When I labored over my first post, “It's time we had a talk,” I meant it. Time for 100,000 of us to sit down and talk.


Do me a favor. Stop for a moment and imagine how things might change if we took a completely new approach to understanding the experience of unexpected outcomes and litigation. What might that look like? I'll do the same, and in future posts, we'll explore that theme.

In the meantime, I want to hear what this cold, dry data does for warm-blooded you. Reach out in the comments section or via e-mail. I read your e-mails personally, protecting your confidentiality, and I'd love to hear your thoughts.

Take a look here to explore how coaching might relieve some of your isolation.

Interested in hiring me as a physician speaker to address unexpected outcomes and malpractice litigation at your next conference or summit? Explore my public speaking here.