Many physicians find comfort in the belief that they have some idea of the likelihood of former patients who are likely to sue. The usual stereotypes: difficult patients, very vocal, always complaining.
But studies show that this is a misconception.
A Medscape Malpractice Report from 2015, which surveyed nearly 4,000 physicians, found that 70% of those who were sued, were surprised by the lawsuit. This indicates a significant portion of doctors do not expect to be sued and are blindsided by the litigation.
Medical malpractice litigation in the United States is a complex and often unpredictable aspect of healthcare, affecting doctors with significant emotional, financial, and professional repercussions.
Why is it nearly impossible for a physician to predict when they might face a lawsuit? What factors drive patients to seek legal action against their healthcare providers?
Let’s delve into these questions and examine the psychological underpinnings of medical malpractice litigation.
The Unpredictability of Litigation
One of the primary reasons doctors find it challenging to anticipate a lawsuit is the multifaceted nature of patient dissatisfaction. Not every adverse medical outcome leads to litigation, but when it does, several factors come into play:
- Outcome Severity: The seriousness of the medical outcome significantly influences litigation risk. Patients experiencing severe, life-altering consequences are more likely to sue, though even minor injuries can lead to a lawsuit if they believe malpractice occurred.1
- Communication Breakdown: Studies suggest that poor doctor-patient communication, especially around the time of or after an adverse event, can increase the likelihood of litigation. Patients who feel unheard or who believe they are owed an apology to are more likely to seek legal redress.2
- Perceived Negligence: If patients perceive that their healthcare provider's actions deviated from the standard of care, this perception can lead to a lawsuit. Even though proving negligence in court requires demonstrating that this deviation directly led to harm, which isn't always straightforward.3
Influences on the Decision to Sue
A patient’s decision to sue can also be influenced by a variety of external factors:
- Family and Social Circle: Family members often play a significant role in encouraging or discouraging litigation. They might push for a lawsuit if they feel the patient has been wronged or if they seek justice or compensation on behalf of the patient. Social networks like Reddit can also influence perceptions of what constitutes malpractice.
- Plaintiff Attorneys: Law firms advertising for malpractice cases can significantly influence patients. These advertisements can frame legal action as a way to seek justice or compensation, sometimes portraying lawsuits as simpler or more rewarding than they typically are. This marketing can lead to a culture where litigation is seen as an avenue to rectify perceived wrongs.
- Media and Public Perception: The media's portrayal of malpractice lawsuits, often sensationalized, can shape public opinion, making litigation seem like a viable or even desirable response to medical treatment outcomes.4
The 'Lottery Winner Mindset'
- High Stakes, High Rewards: In some states or communities, there's a perception that medical malpractice lawsuits can be akin to a "lottery win." This mindset is fueled by stories of large settlements or verdicts, which, while not common, receive significant attention. This can create an expectation of substantial financial gain from litigation, especially where there are no caps on non-economic damages.
- Economic Factors: In economically disadvantaged areas, the prospect of a lawsuit might be seen as a potential financial lifeline, influencing the decision to litigate even in cases where malpractice might be less clear-cut.
Psychological Impact on Doctors and Defensive Medicine
The fear of litigation has a profound psychological impact on physicians, which can sometimes increase the possibility of litigation. For instance:
- Defensive Medicine: Doctors might order unnecessary tests or avoid high-risk procedures to reduce their exposure to lawsuits, which can lead to increased healthcare costs and potentially expose patients to additional risks from these procedures.5
- Emotional and Professional Stress: The threat of litigation can induce significant stress, anxiety, and even lead to changes in practice patterns and an increased likelihood of mistakes or omissions.6
Conclusion
Medical malpractice litigation in the U.S. is driven by a complex interplay of medical outcomes, communication failures, societal influences, and economic incentives.
For doctors, the unpredictability stems from the multifaceted nature of human judgment and the variability in how patients and their families interpret healthcare experiences.
For patients, the decision to sue is influenced by personal, familial, and societal factors, with the legal system sometimes perceived as a chance for compensation or justice rather than solely a means to address genuine malpractice.
Any lawsuit, regardless of how frivolous it is, will cost the physician time, money and a certain amount of stress. Without the protection of ERP/Tail insurance, medical professionals will find themselves flung into a totally alien world of malpractice litigation - A space that medically trained personnel may find difficult and stressful to navigate. It’s a world where mistakes can be extremely costly.
References:
1. https://www.ncbi.nlm.nih.gov/books/NBK470573/
2. https://pmc.ncbi.nlm.nih.gov/articles/PMC1071103/
3. https://www.ncbi.nlm.nih.gov/books/NBK470573/
4. https://pmc.ncbi.nlm.nih.gov/articles/PMC3905283/
5. https://link.springer.com/chapter/10.1007/978-1-4612-4534-6_35
6. https://pubmed.ncbi.nlm.nih.gov/1948211/
