New reports: How COVID-19 affected medical malpractice lawsuits

Medical malpractice lawsuits against internists and family medicine physicians were down in 2021 compared with data from 2 years ago, according to two March 2022 Medscape reports—and it seems COVID-19 may be a suppressing factor.^[][]

According to the reports, lockdowns and social distancing may have kept patients out of medical practices and law firms, limiting provider-patient interactions and lawsuits. In 2019, 54% of internists said they had faced a claim, compared with 47% in 2021. Among family physicians, 49% said they faced a claim in 2019, compared with 41% in 2021.

Behind the numbers

Michael Moroney, JD, an attorney with Flynn Watts, LLC, said in the Medscape reports that “COVID certainly has something to do with it.”

All internists and family physicians surveyed said that they had not been named in a malpractice lawsuit related to COVID-19. This may stem from states issuing qualified immunities for COVID-related prevention and diagnosis claims, making it more difficult for patients to sue. We may, however, see more COVID-related lawsuits if the immunities expire. 

Medscape queried 330 internists and 402 family physicians, all based in the US, asking them to respond to a 10-minute online survey between May 21 and August 28, 2021.

In addition to a decline in the overall number of lawsuits, there were several other commonalities between the two reports.

“Failure to diagnose/delayed diagnosis” was the leading reason for lawsuits in both provider groups. Among internists, this was the source of 38% of suits, and among family physicians, it accounted for 43%. “Poor outcome/disease progression” was the second-leading cause, with 30% among internists and 23% among family physicians.

An emotional struggle

The emotions behind the numbers are sometimes lost in malpractice lawsuit data. Both provider groups indicated that malpractice lawsuits were trying experiences.

When asked about the worst aspect of being sued, an internist offered the following:

“The stress, sleeplessness, anxiety, anger; I felt like I was caught in a bad luck situation that hurt my career and self-esteem.”

A family medicine physician expressed a similar sentiment:

“Even though it was a relatively minor case (in terms of damages), it was still very upsetting to have your medical decision-making challenged.”

Perhaps worsening the experience, the majority of internists and family physicians did not see the lawsuits coming. Among internists, 59% said they were “very surprised” by the lawsuit, as did 67% of family physicians.

“The surprise of the notice was the worst part,” said one family medicine doctor.

“The patient was in a car accident and went to another hospital, not mine,” said one internist. “I had only seen him once as an outpatient. He left the hospital and developed a DVT/PE and died. Everyone was named. I never saw him in the hospital nor was I involved in his care in the hospital. I never got any records from the hospital.”

Overall, 84% of both the family physicians and internists felt the lawsuits were not warranted.

Moving past a malpractice lawsuit

Nearly 40% of family physicians and 29% of internists settled their malpractice lawsuits before trial. This is a common occurrence, according to Charles Lohrfink, a senior managing partner at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP. 

“When a case goes to trial, our experience has been that we are successful on behalf of the physician much more often than not,” Lohrfink told Medscape. “The back story is that if we truly feel that a jury could perceive merit to the plaintiff’s case, we’ll make an honest effort to resolve the case fairly ahead of time.”

“Ahead of time” may not be as expedient as internists and family physicians would like, however. Among internists, 34% saw their case take 1-2 years, as did 45% of family physicians. 

“The worst part of being sued was the time it took out of my life, and then the uncertainty it placed in my mind about my patient care and even my desire to practice,” said one family physician.

For internists and family physicians, the lawsuits ended similarly.

Learning from the experience

When asked what they would have done differently, internists and family physicians offered the same top four suggestions: 

1. Had better chart documentation (18% and 17%, respectively)

2. Ordered tests that would have covered them in case a malpractice lawsuit was brought against them (10% and 12%)

3. Never taken on the individual as their patient in the first place (10% and 11%)

4. Referred the patient to another physician (10% and 8%)

Regarding the third point, the Medscape data seem to suggest that doctors may want to listen to their gut if they have a strong reaction to a patient.

“Sometimes the clues are there but physicians don’t notice or pay attention to them,” Lohrfink told Medscape. “If you feel that the patient might be litigious or you simply get an uncomfortable feeling, then refer the patient to a specialist or suggest a second opinion.”