Traditionally, physicians have been reluctant to share their personal experience with malpractice litigation due to fear of repercussions in the community and loss of professional reputation. Estimates regarding the frequency of malpractice claims against emergency physicians have been sorely lacking.

Nonetheless, EPs have long felt that we might be disproportionately sued because of the unselected nature of our patients, our frequent inability to establish rapport (with patients or families) given the limited time frame of our interactions with patients and the acuteness of their illness or injury, and the fact that so many factors not under our control may affect the attitudes, and unfortunately even the clinical outcomes, of our patients.

An AMA survey of physicians from 42 specialties found that 42% had been sued for malpractice at some time in their careers, with an average of 95 claims for every 100 physicians surveyed. Emergency physicians ranked fifth in claims frequency overall, with 109 claims per 100 physicians. Nearly half the EPs reported experiencing at least one claim, and 30.9% had been sued several times. In the year covered by the survey (2007-8), 8.7% of the EPs surveyed had been sued, compared with 5% from all specialties.

More than 75% of EPs older than 55 had experienced claims (compared with 61% from all specialties). However, the number of EPs responding to the survey was small.

A subsequent study using data from Physician Insurers Association of America (whose members insure 60% of physicians nationwide) looked at aggregate outcomes for emergency medicine malpractice claims from 1985-2007.

The study revealed that 64% of claims were closed without payment, 29% closed via settlement, and only 7% were tried to verdict, with 85% adjudicated in favor of the physician. This study included cases generated from emergency departments but involved only adult patients and did not separate out those cases actually brought against emergency physicians (19% of cases).

The ACEP Medical Legal Committee’s all-member survey conducted in 2010 , which was a voluntary survey of self-reported experience, suggested that the majority of emergency physician members had been named in a claim for malpractice at least once. Almost 10% of survey respondents had been named five or more times. Of cases litigated, the survey suggested over 85% of cases resulted in a defense verdict. However, 40% of respondents reported that some payment was made on their behalf in one or more claims.

Lately, however, we have received some relatively good news from a well-conducted study that did not rely on self-reporting. Last year, a large and long term study of closed claims involving all specialties covered by a nationwide malpractice insurer revealed that emergency physicians received just over the average number of claims for all specialties at 7.6 vs. 7.4% per year and was just under the average for all specialties in the percentage of physicians making payouts on claims at 1.4 vs. 1.6% per year. Emergency medicine was the 15th-most sued specialty out of 25, but the 19th out of 25 in terms of actual payout indemnity. Average payment was approximately $175,000.

Several sources suggest that the overall number of both claims and paid claims has trended down in recent years and that the total indemnities paid have diminished dramatically. However, there are substantial monetary costs (average $22,959, and up to twice that in litigated cases) incurred in simply defending claims, in addition to indemnity payments.

The average duration of claims ranged from 11 to 43 months depending on the type of resolution achieved. Therefore the human costs (time away from practice, stress on the individual physician, the practice, and the family, damage to reputation, increasing liability premiums, perpetual reporting requirements to various agencies, employment discrimination, etc.) are still substantial.

In the ACEP Medical Legal Survey, 60% of sued respondents reported that they had experienced litigation stress. Few felt that they had any preparation or education in dealing with the stress. Almost 90% of all respondents reported that they practice defensive medicine (defined as ordering tests or consultations to avoid potential liability), which is certainly a common response among physicians to litigation or the fear of litigation.

The stress of ongoing or impending malpractice claims can prompt a variety of intrusive feelings. Physicians undergoing litigation stress often feel isolation and sadness or irritability and anger, disbelief, and a sense of betrayal or of being unjustly singled out. They may experience denial, anxiety, insomnia, inertia, or depression, which can be low-level or occasionally debilitating. The onset or exacerbation of physical illness, including gastrointestinal or cardiac symptoms, is not uncommon but is often ascribed to tension, and therefore medical evaluation is typically delayed. Self-treatment is common.

Litigation or medical malpractice stress also typically causes significant immediate changes in practice patterns, all of which are deleterious to good practice and to patient relationships. Sued physicians emotionally distance themselves from patients, whom they may begin to view as potential future litigants. They become less confident in their capabilities, second guessing diagnoses, calling for more consultations, requiring more confirmatory lab tests, and admitting or transferring patients more liberally.

They become much more obsessive in record keeping, which could be viewed as protective except that this often comes at the cost of effectively communicating with patients. It has been shown that physicians who have recently received claims may be more vulnerable to subsequent claims.

Physician litigation stress also frequently results in long-term changes, especially if the physician already suffers from an emotional deficit or is sued early or multiple times in the course of a career. Such physicians are more likely to consider changing practice locations or medical specialty, to consider retiring early, or changing careers to something less stressful. In the worst cases, disability or even suicidality may emerge as a result of medical malpractice stress.

There are various approaches to dealing with the stress of litigation. The most important, after taking steps to insure a defense team is in place, is to identify your personal sources of support and renewal.

For example, sharing the fact of the lawsuit with spouse, counselor or clergy provides a protected mechanism for offloading the feelings engendered by the case, and is a way of getting valuable feedback on how you are coping. Sharing is also possible with sympathetic colleagues, as long as the facts of the case and identifying information are not divulged.

Contact with a peer who has “been there” and survived can be life and career affirming. Educating yourself about the legal process, mastering the details, and learning the legal strategies involved in your case, and practicing successful approaches to stress can begin to restore a sense of control over the situation (litigation) which is otherwise so alien to our sensibilities and daily operations as physicians and healers.

This year a multi-committee collaboration has begun within ACEP in order to address the needs of members with respect to malpractice litigation stress. The Medical Legal, Well-Being, and Academic Affairs committees have been assigned objectives, including the development of a centralized, web-based clearinghouse of educational materials and resources on litigation stress; the further development of a network of member peer counselors who have experienced litigation stress, and working with the Education Committee to develop CME specific to the issue of litigation stress as a way of increasing awareness of principles and resources available to members on this issue.

If you have suggestions of resources on litigation stress management, if you would like to consider serving as a peer counselor, or if you can contribute to the effort in any way, please contact Marilyn Bromley, ACEP’s Director of Practice Management at mbrombley@acep.org.

References

1. Editorial, Medical liability: Lawsuit chances take a toll, AMNews Sept 6, 2010, www.ama-assn.org/amednews/2010/09/06/edsa0906.htm, referencing Kane,CK, Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians, AMA Center for Economics and Health Policy Research, Aug 2010, http://www.ama-assn.org/ama1/pub/upload/mm/363/prp-201001-claim-freq.pdf accessed 5/24/2010.
2. Brown TW, McCarthy ML, Kelen GD et al., An epidemiologic study of closed emergency department malpractice claims in a national database of physician malpractice insurors , Acad. Emerg. Med. 2010; 17:553-60.
3. Andrew LB ACEP News April 2012 www.acepnews.com/news/news-from-the-college/single-article/a6f98438af5b4b13cad3b4ada1b62ea5.html?tx_ttnews[tt_news]=1209 accessed 5/21/12.
4. Jena, et al, Malpractice Risk According to Physician Specialty, N. Engl. J. Med .2011; Aug 11 365:629-36
5. Seabury S, et al., Defense Costs of Medical Malpractice Claims; N. Engl J. Med., 2012 Apr 5; 366(14):1354-1356
6. Jena, et al., Outcomes of Medical Malpractice Litigation Against US Physicians Archives of Internal Medicine May 14 2012.
7. Andrew, LB ACEP News April 2011 www.acepnews.com/news/news-from-the-college/single-article/a6f98438af5b4b13cad3b4ada1b62ea5.html?tx_ttnews[tt_news]=1209 accessed 5/21/12.

Dr. Andrew is a senior member of the Medical Legal Committee, past and future chair of the Well-Being Committee, and a medical malpractice litigation stress educator and counselor.

To read a related sidebar on this topic, go online and read: Self Assessment for Medical Malpractice Stress: www.mdmentor.com/test-mmss/