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Top 5 Reasons for Medical Malpractice Lawsuits

Medically Reviewed By William C. Lloyd III, MD, FACS

Total malpractice litigation has declined since COVID, but the reasons for malpractice cases remain consistent.

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As many physicians will tell you, medical errors and medical malpractice lawsuits are not necessarily a one-to-one comparison. More than half of doctors will be named in a lawsuit at some point during their careers—regardless of whether they have made a medical error.

Even though only a fraction of malpractice suits are decided against the physician or physicians named, the experience of being sued for malpractice can have a long-term and potentially devastating effect on a doctor’s career.

According to a recent malpractice report from Medscape, fewer lawsuits have taken place since COVID than before the pandemic. Both specialists and primary care physicians report less involvement in malpractice cases.

While many healthcare institutions and practices have risk reduction strategies to promote patient safety and reduce physician error, medical malpractice suits still occur. Here are some key takeaways from the 2023 Medscape report and how they compare with the 2021 survey.

Poll
Have you ever been named in a malpractice lawsuit?
Young African American male doctor in hallway looking stressed or tired
Yes
confident female doctor standing with tablet
No
Yes
%
No
%
Total votes: 606

Top reasons patients sue

There are numerous reasons a patient or caregiver might name physicians in a medical malpractice lawsuit, but these were the top five cited and the percentage of claims they comprised in the 2023 survey vs. the 2021 report:

  1. Failure to diagnose or delayed diagnosis: 35%, up from 31%
  2. Complications from treatment or surgery: 27%, down from 29%
  3. Failure to treat or delayed treatment: 22%, up considerably from 16%
  4. Poor outcomes or disease progression: 20%, down from 26%
  5. Wrongful death: 15%, up from 13%

Top doctors patients sue

In the Medscape report, 58% of specialists said they had been named in a malpractice lawsuit compared to 45% of primary care providers. These were the top five specialties named by respondents as being involved in a current or previous suit.

  1. General surgery: 90%
  2. OB-GYN: 85%
  3. Orthopedic surgery: 82%
  4. Plastic surgery: 73%
  5. Otolaryngology: 72%
  6. Radiology: 72%
  7. Urology: 72%

Otolaryngology, radiology and urology tied for fifth place.

Where patients sue

According to the surveys, where you practice can matter. Certain states are more litigious than others. Doctors in these five states reported the highest rates of being named in a malpractice claim.

  1. Louisiana: 72%
  2. Indiana: 68%
  3. Kentucky: 68%
  4. New Mexico: 67%
  5. Pennsylvania: 66%

As common as medical malpractice lawsuits are, more than half of physicians surveyed said they were “very surprised” by being sued. Another 32% were “somewhat surprised,” with only 14% saying they were not surprised at all.

Overall, the large majority of doctors (83%) said the lawsuits were not warranted.

Preventing medical malpractice lawsuits

When asked what they think drives most malpractice lawsuits, 71% of physicians said patients do not have a full understanding of medicine or fail to recognize that sometimes a provider can do everything right and the outcome simply is not successful. One physician was quoted as saying, “People have unrealistic expectations about what medical care can and can’t do.”

Doctors who reported having been involved in a medical malpractice suit were asked how they adjusted after the claim. Respondents gave a variety of answers:

  1. Took steps to reduce for future claims: 40%
  2. Trusted patients less often and treated them differently: 32%
  3. Left the practice setting: 8%
  4. Changed insurers: 2%
  5. Purchased more malpractice insurance: 1%

When hearing from all doctors surveyed, opinions about malpractice lawsuits are as varied as the individual respondents themselves. Given the ability to select more than one answer, respondents cited these as the top ways to discourage malpractice suits:

  1. Better communication and rapport with patients: 54%
  2. Medical panel to screen cases for merit: 49%
  3. Make plaintiffs responsible for all parties’ legal fees if they lose: 43%
  4. Caps on noneconomic damages: 42%
  5. Ban on lawyers taking malpractice cases on contingency: 27%
  6. Reduction in medical errors made by doctors: 25%
  7. Try cases before health courts: 20%

Medical malpractice lawsuits are, unfortunately, always a risk for those who choose to practice medicine. While these cases rarely result in decisions against the physician, the time, expense, and emotional impact still take a toll.

By working with your health system to continue implementing strategies to mitigate risk, practicing open and transparent communication with patients, and keeping detailed documentation of treatment decisions, you can reduce your risk of being named in a suit and—more importantly—improve the likelihood of successful care outcomes.

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  1. Is Your Risk of Being Sued Climbing? Medscape Physicians and Malpractice Report 2023. https://www.medscape.com/slideshow/2023-malpractice-report-6016734
  2. Reducing the likelihood of malpractice claims. Becker’s Hospital Review. https://www.beckershospitalreview.com/human-resources/reducing-the-likelihood-of-malpractice-claims.html
  3. Medscape Malpractice Report 2021. Medscape. https://www.medscape.com/slideshow/2021-malpractice-report-6014604
  4. The top 5 reasons for malpractice lawsuits against doctors. Fierce Healthcare. https://www.fiercehealthcare.com/practices/top-five-reasons-for-malpractice-lawsuits-against-docsFirst, do no harm. Harvard Health Publishing. https://www.health.harvard.edu/blog/first-do-no-harm-201510138421
  5. Physician Oaths. Association of American Physicians and Surgeons. https://www.aapsonline.org/ethics/oaths.htm
Medical Reviewer: William C. Lloyd III, MD, FACS
Last Review Date: 2020 Jan 29
THIS TOOL DOES NOT PROVIDE MEDICAL ADVICE. It is intended for informational purposes only. It is not a substitute for professional medical advice, diagnosis or treatment. Never ignore professional medical advice in seeking treatment because of something you have read on the site. If you think you may have a medical emergency, immediately call your doctor or dial 911.