My patient sued me for malpractice

By Kristen Fuller, MD
Published September 1, 2023

Key Takeaways

While rotating in the ED during my second year in residency, an older woman presented with a headache after falling. A CT of her head and neck were negative for acute trauma or bleeding, and the ED attending discharged her later that day. Unfortunately, she returned to the ED a few hours later due to an undiagnosed liver laceration with active bleeding; she passed away in the ICU a few days later. 

She had no signs or symptoms of abdominal trauma on her initial presentation in the ED. The hospital, ED attending, ICU attending, ICU residents, and myself were named in the lawsuit. I was served papers at work. I was included, because I had done the initial H&P in the ED, so my name was on the chart. My attending had written an amendment to my H&P. 

I had no idea what to do next

I remember feeling terrified. I was scared I would lose my job, my livelihood, and the tiny amount of possessions I owned.

After being served papers, I sat with my residency program director and hospital administration. I did not know what to expect, what steps to take, who to talk to or not to talk to, what to say or not say, and I had no idea of the procedural steps of a lawsuit. 

Thankfully, my residency program helped me through these challenges, and within a few months, I was told the case was dropped, and medical malpractice was not found. Later on and throughout my residency, I learned that other residents and fellows had been listed in malpractice suits. I learned how crucial it is to properly document incidences, build a solid patient rapport, and to make sure you carry good malpractice insurance.

As a resident, you are still in the learning process of your career, and a lawsuit can blow your confidence. Many physicians are aware of the likelihood of being sued at some point throughout their careers, but if it happens, it still comes as a shock. 

"It is normal to wonder what you did wrong and what you could have done differently. It is normal to question whether or not you are a competent physician."

Kristen Fuller, MD

However, no matter how skilled you are, how compassionate you are, and how much you try, there will still be devastating outcomes under your care, as that is the nature of medicine.

Malpractice suits are more common than you think

According to an article published by the AMA, 34% of physicians have had a medical malpractice suit filed against them at some point.[] And not all specialties are created equal—surgeons and OB/GYNs are most at risk of facing medical malpractice lawsuits, and pediatricians and psychiatrists are the least, with ED doctors in the middle. 

"The longer a physician has been in practice, the more likely they will be sued."

Kristen Fuller, MD

The AMA article states that “nearly half of physicians 55 and older report having been sued, compared with just 8 percent of doctors younger than 40. Female physicians are less likely to be sued than their male counterparts, part of which is attributable to differences in age and specialty."

Most malpractice lawsuits do not make it to court and are actually dropped. The small number of claims that do go to court, the vast majority are won by the defendant (the physician). However, defense legal costs still impose an average of $30,000. As well, these proceedings have a significant emotional and mental toll on the physician and their family.

Bad outcomes vs patient-physician relationship

Even the best physician in the world can get sued for malpractice. However, there are steps you can take to help prevent a malpractice suit. As noted in an article by Healthcare Risk Management, “A decision to file a medical malpractice lawsuit often is driven by how the patient and family feel they were treated by physicians and staff. Efforts to convey a sense of caring can reduce the likelihood of a lawsuit.”[]

The patient-physician relationship is the most critical factor when a patient is deciding whether or not to file a malpractice suit.

Even if fault is involved, the patient is less likely to file if the physician is open and honest in communication, and if they are empathetic and respectful. This is why it’s important to take time to communicate with your patients and their families effectively. This may mean that you set aside specific time for them to ask any questions about their care.

Types of insurance to carry

Not all states require physicians to carry malpractice insurance. However, your employer (hospital or private practice) may require it. Most physician practices and academic institutions provide malpractice insurance, so the choice is generally out of your hands. 

Still, if you have a choice, you may want to consider carrying “occurrence” over “claims made.” What does this mean? In simple terms, occurrence policies mean that you are covered for any incident during and after your coverage period, even if the lawsuit is filed after the coverage period. Claims-made policies only cover you if the lawsuit is filed during the coverage period; if you want to be covered after that, it will mean purchasing extra “tail” coverage.

You got hit with a lawsuit—now what?

While a lawsuit may come as a total shock, being properly prepared can help offset some of your anxieties. Here’s what to do in case a malpractice suit is filed against you.

First and foremost, make sure to have a copy of malpractice insurance and the carrier information on you at all times. 

Make sure this insurance does not lapse. Keep copies of medical malpractice coverage from former jobs, and hold onto them for a time equal to the length of your state’s malpractice statute of limitations.

Contact your malpractice insurance company (your insurance broker or agent) immediately after you are served. 

Your malpractice insurance company will have a lawyer to help represent you, but in reality, the lawyer represents the insurance company. You will want to contact the insurance company immediately, so the attorney can issue a response. If the response is not issued within 20 to 30 days, the court may make an entry of default, so time is of the essence. 

Do not discuss the case with anyone.

You should not discuss the case with your colleagues; your patient; your patient's attorney, insurance broker, or agent; or your close family and friends. Do not go “off the record,” and do not change past patient notes, as this can be considered tampering with evidence. 

Be patient and take care of yourself.

This can be a long, tedious process and much of it may not make sense to you, and that is okay. It is important to be patient, continue on with your everyday life, and stay in communication with your lawyer. Take care of yourself by leaning on your loved ones, doing things that bring you joy, and remembering that you are a good physician—even if a mistake was made, you are human, and you did the best you could for your patient at the time. 

Each week in our "Real Talk" series, mental health advocate Kristen Fuller, MD, shares straight talk about situations that affect the mental and emotional health of today's healthcare providers. Each column offers key insights to help you navigate these challenging experiences. We invite you to submit a topic you'd like to see covered.

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