The legal battlefield of medicine: Insights into medical malpractice nationwide

By Lisa Marie Basile
Published February 13, 2024
Malpractice

Medical malpractice can take many forms—from issues of surgical errors to claims of confidentiality breaches. Unfortunately, being sued for medical malpractice is a very real possibility, according to a 2022 American Medical Association (AMA) analysis. In fact, the findings show that about 30% of US physicians have been sued for medical malpractice. And the longer you’re in practice, the higher the risk.

“In the United States, a patient may allege medical malpractice against a clinician, which is typically defined by the failure to provide the degree of care another clinician in the same position with the same credentials would have performed that resulted in injury to the patient,” according to StatPearls. 

Getting sued—whatever the case and whatever the outcome—is a challenging experience, as trials require time, money, and resources. It’s also stressful. Research shows that for MDs who do experience a suit, most react to being sued by “experiencing periods of emotional distress during all or portions of the lengthy process of litigation.” 

To compound the issue, most MDs don’t even feel comfortable openly discussing medical malpractice—which can lead to further anxiety. If this is you, you’re not alone. 

No matter how uncomfortable the thought of a suit might be, being knowledgeable about the malpractice landscape is a must.

Medical malpractice by the numbers 

Between January 1 to June 30, 2022, there were 23,917 medical malpractice suits in the US. California had the most, with 2,074. Other states clocking in with the most suits included TX (1,903), FL (1,668), OH (1,347), and MI (904). The states with the fewest suits included MT, SD, ID, RI, HI, and VT. More populous states tend to have more suits.   

Some of these suits result in huge sums of recovered money. In 2023 alone, there have been several high jury awards to plaintiffs—many totaling over $25 million. 

Related: The biggest malpractice cases of 2023: States are shifting the legal landscape

“It’s important to remember that getting sued is not necessarily indicative of medical error,” the AMA states. In fact, they report that 65% of all claims between 2016 and 2018 were dropped, dismissed, or withdrawn. Of the 6% of claims decided by a trial verdict, 89% favored the defendant. 

Medical liability premium costs are also a harsh reality—and the prices are surging, the AMA reports. Between 2013 and 2018, premiums were largely stable. By 2019, prices jumped—increasing by about 27%—nearly doubling the prior year’s costs. 

And then, between 2020 and 2022, an estimated 30% of premiums jumped year over year. The premium costs range based on geography and specialty. For example, the AMA says an OB/GYN in Los Angeles County, CA, may pay a base premium of $49,804, while an OB/GYN in Miami-Dade County, FL, pays $226,224.

Fifteen states saw a double-digit increase (10% or more) in premium costs in 2022. 

These states (and the percentage of premiums which increased within them) include:

  • Illinois (63.6% of premiums increased)

  • New Mexico (33.3%)

  • Oregon (26.7%)

  • Kansas (20%)

  • South Dakota (20%)

  • Kentucky (20%)

  • Massachusetts (16.7%)

  • Montana (16.7%)

  • Missouri (14.8%)

  • South Carolina (11.1%)

  • West Virginia (6.7%)

  • Maine (6.7%)

  • Virginia (6.4%)

  • Nevada (5.6%)

  • Georgia (4.8%) 

Standout malpractice cases 

Some cases are so unique, complex, or tragic that they inevitably make headlines—oftentimes, with juries favoring the plaintiffs and awarding huge sums. If an MD loses a suit, they could be liable if they aren’t an employee of, say, a hospital. 

An alleged infant decapitation cover-up: In July 2023, an infant boy died during delivery at Southern Regional Medical Center. The parents claim he was decapitated due to the delivering MD’s use of “excessive force.”  

Related: An infant was decapitated during delivery without the parents' knowledge—then 'grisly' photos of the autopsy were leaked

The couple’s attorneys also allege that the doctor—along with the staff—intentionally hid details from the couple, saying the baby had died during delivery without revealing the decapitation. It was only when a funeral home employee notified the parents of the decapitation that they found out about the tragic reality. 

The family filed a lawsuit in August, alleging that the MD—as well as Southern Regional Medical Center—are guilty of medical malpractice, gross negligence, fraud, and intentional infliction of emotional distress. The lawsuit is pending and ongoing. 

Dr. Leslie Farrington, MD, a retired OB/GYN, co-founder and vice president at the Black Coalition For Safe Motherhood, Inc., and a board of directors member at the Pulse Center for Patient Safety Education & Advocacy told MDLinx.com that while she didn’t know all of the details of the case, she speculates that the MD could lose her license due to the alleged cover-up aspect of the case. 

“The whole team was complicit with the doctor in covering it up. The team that took care of [the infant and mother] is responsible, but the hospital is probably going to pay. It’s one thing for a baby to die or to not be able to handle the delivery, but to cover it up was the biggest mistake,” Dr. Farrington says.

A patient whose leg injury resulted in amputation: In May, a Philadelphia jury awarded $25.9 million to a patient who sued Temple University Hospital in Philadelphia, PA, after a 2018 emergency room visit for a leg injury resulted in his several-month stay in the hospital as well as lower-limb amputation. 

Related: Philadelphia jury awards $25 million to man who lost limb due to medical malpractice

The suit states that the MDs failed to promptly diagnose and appropriately treat his injuries—a knee dislocation and popliteal artery injury, which led to the cascade effect of issues. The suit was brought against Temple University Hospital and the orthopedic surgeon involved. Although both parties denied responsibility for the patient’s injuries, claiming that he himself delayed seeking care. The jury ultimately ruled in favor of the patient, granting him $20 million for non-economic losses and $5.9 million to cover future medical expenses.

The Kentucky MD removed from practice for touching his nose: In 2019, a Kentucky-based MD working for Baptist Health Medical Group was accused of being “impaired” and “touching his nose a lot” during a routine patient exam. This accusation not only led to a 96-hour evaluation, a suspension from practice, a contractual agreement to abstain from alcohol or mood-altering drugs for five years, an agreement to get regular drug tests, a delayed residency graduation, and difficulty obtaining employment.  

Related: A Kentucky doctor who was removed from practice for 'touching his nose' in an exam is awarded millions by a jury

The MD sued his employers, citing breach of contract and interference with future potential business. He won and was awarded $3,736,044 in damages (the majority of which was awarded for humiliation, emotional distress, and mental anguish). Kentucky may offer high pay to MDs, but it’s generally considered a “patient-friendly” state, according to Kentucky-based law firm Meinhart, Smith & Manning.

Some healthcare providers and advocacy groups take issue with the high suit payouts, as it can impact facilities and patients who rely on a certain healthcare system. 

Not every state offers huge payouts to plaintiffs, either. There are 29 states that currently set malpractice caps on damages. Some states have set a hard cap on non-economic damage payouts. 

Other states, however, maintain that a cap is simply unconstitutional. Like Kentucky, states without a cap include Pennsylvania, New York, and Minnesota.

According to Mike Schmidt, a lawyer specializing in medical malpractice cases at Schmidt & Clark LLP, MDs should know that winning or losing a lawsuit comes down to various factors: the state, the specific circumstances of the case, the quality of legal representation, and even local legal culture (see Pennsylvania’s new law below).

Some states are more plaintiff-friendly, making it easier for patients to win malpractice suits. Generally, Schmidt says, “These states might have lower thresholds for proving negligence or more sympathetic juries.” 

States with stricter malpractice laws generally see fewer lawsuits take place, meaning MDs aren’t as likely to deal with higher malpractice insurance premiums or liabilities. 

All that said, these are generalizations; it depends on the case. “Doctors really need to be on their toes, understanding the nuances of malpractice law in their specific state,” he says. 

Schmidt encourages MDs to turn to legal databases like LexisNexis or Westlaw to better understand the state they're practicing in. “They offer extensive legal libraries where you can delve into specific statutes and case law that affect medical practice in a state,” he says. 

A closer look at a few key states

Florida: In Florida—a state some call “physician-friendly”— statute 768.21 includes a provision that prevents families from filing wrongful death and medical malpractice suits unless they meet specific criteria. For example, only surviving spouses or children under the age of 25 can file medical malpractice claims on behalf of deceased patients (who are over the age of 25). It’s the only state where an age limit is in place. Lawmakers have been trying to rid the state of this law, but it’s still in place.

Additionally, Florida’s statute of limitations on reporting medical negligence was reduced from four years to two years. More so, an MD’s defense team can call for an appeal mid-trial simply by undermining the plaintiff’s expert witness’s credentials. The goal? To lessen the number of malpractice suits and keep malpractice premiums low. 

Utah: Historically, most states employed a screening panel in order to validate malpractice claims and prevent “frivolous lawsuits.” Times have changed, and many states have done away with this step in the process—due to inefficacy or a state deeming it unconstitutional. Utah is one of 16 states that still requires a panel. 

One concern surrounding the panel is that due to the state’s smaller population, panels may be made up of healthcare professionals who know or have worked with the defendants, making neutrality a challenge. 

ProPublica reports that critics believe this process gives “medical providers more protection” and “is another way for medical providers to avoid liability.” In 2023, a new rule was put into place exempting victims of sexual abuse by a medical provider from this process. 

South Dakota: South Dakota, according to Physicians Thrive, is also undoubtedly physician-friendly, with its second-highest-paid physician income in the country (MDs earn an average of $258,280 annually) and its low number of malpractice suits. 

According to Gallagher, an insurance brokerage, South Dakota’s rates are generally lower than most states, while the state’s “tort reforms appear to encourage lower professional liability insurance costs and aggressive physician protection.” In 2022, South Dakota was named the “Best State for Doctors,” according to WalletHub. 

New York: New York is rife with lawsuits. From 2012 to 2022, New York also saw the highest number of medical malpractice lawsuits of all 50 states. It’s also considered very “plaintiff-friendly” with regard to damage awards. In fact, NY state has no limit on damages at all. In 2022, $460,803,000 was paid out in damages (an average of $565,402 per case.)

New York’s landscape is changing in certain ways, however. A bill that would have expanded wrongful death lawsuits in favor of plaintiffs—leading to expensive suits that could deeply impact physicians and hospitals—was vetoed earlier this year by Governor Kathy Hochul. 

Pennsylvania: Previous law stated that plaintiffs could only sue medical providers in the county where the incident occurred. However, a newer law has lifted this restriction, allowing plaintiffs to sue in any county where they do business or have substantial contacts.

The Philadelphia Inquirer reports that juries differ from county to county, making certain counties more favorable for plaintiffs. For example, Philadelphia juries generally rule in favor of plaintiffs three times more often than Montgomery juries. As a result, Philadelphia's malpractice cases nearly tripled after the law went into effect. 

Philadelphia seems more appealing to plaintiffs, the Inquirer reports, because “juries in suburban and rural counties have a reputation for being more sympathetic to local doctors and hospitals than plaintiffs.”

Malpractice law in military settings

Physicians who work in a military hospital and medical center environment cannot be sued directly by a patient. The way medical malpractice might operate in any given state goes out the window in a military hospital environment, according to Schmidt. 

“Military hospitals operate under a different set of rules compared to civilian facilities,” Schmidt says. “The Federal Tort Claims Act (FTCA) governs medical malpractice claims against government employees, including military healthcare providers. This means that if you're seeking compensation for malpractice in a military hospital, you're typically dealing with a federal agency—adding an extra layer of complexity to the legal process.”

Schmidt says the FTCA requires an administrative claim before heading to court—which requires strict following of certain procedures and timelines. “This contrasts with civilian cases where you could be dealing with state laws,” he adds. 

Schmidt also says that the military healthcare system is structured differently, down to its standards of care. He says military healthcare providers work in different environments and deal with different kinds of injuries—which impacts malpractice cases. 

Military healthcare providers may be subject to the Uniform Code of Military Justice, too, he adds—a set of military justice system laws. “This adds another dimension to the legal landscape. It’s not just about understanding the medical side but also navigating the intricate web of military and federal regulations,” Schmidt explains. 

Things in the military have changed slightly over the past years, however. As of December 20, 2019, members of the uniformed services—or their authorized representatives—can file claims with the Department of Defense (DoD) for personal injury or death if a DoD provider is responsible. The DoD will then investigate the claim and go from there. 

Which specialties need the most coverage?

OBs and Malpractice

According to the results from the American Medical Association’s (AMA) 2016-2022 Physician Practice Benchmark Surveys, OB/GYNs, general surgeons, orthopedic surgeons, and other surgeons have a higher incidence of claims than their colleagues in other specialties. 62.4% of OB/GYNs have been sued during their career.

About 60% of general surgeons have been sued as well. According to Paul Kim, MD, an orthopedic surgeon, this stat makes sense. “Surgical specialties, due to the inherent risks and complexities involved, are among the most susceptible to malpractice claims…[and that’s because] these specialties require a high degree of precision and expertise, and even minor errors can lead to significant patient harm, resulting in higher rates of litigation.” 

Allergists/immunologists and hematologists/oncologists are among those least often brought up on a malpractice claim. 

Women MDs vs Male MDs

The survey also found that gender and age play a key role in which physicians get sued. Only 24% of female MDs were sued versus 36.8% of their male counterparts. “There are a number of reasons why women are less likely to be sued. In terms of short-term risk, they tend to practice in less risky specialties and provide fewer hours of patient care,” the AMA says. 

Physicians under the age of 40 are less likely than older physicians (40-54) to be sued than those over 54, while those over 54 are more likely. 

The importance of medical malpractice insurance

Dr. Kelvin Fernandez, MD, a resident physician at Newark Beth Israel Medical Center in Newark, NJ says it’s crucial for every healthcare practitioner—regardless of specialty—to attain medical malpractice insurance. 

“Medicine is inherently a field riddled with uncertainties…and despite our best efforts, mishaps can occur. Medical malpractice insurance serves as a safety net,” Dr. Kelvin says. 

William Kemper, DMD, agrees. He recommends that MDs take the time to understand what types and levels of coverage the different specialties generally require—based on which state they practice in as well as the risks associated with what they do. 

“Even lower-risk primary care doctors should maintain ample professional protection,” Dr. Kemper says. He suggests MDs turn to the American Medical Association and state medical associations for help here. “They often have excellent resources on recommended insurance standards...MDs should also consult directly with brokers to fully evaluate options from major carriers like Medicus, The Doctors Company, and NORCAL,” he adds. From there, you’ll want to compare premium costs against coverage details. 

Beyond coverage, Kemper stresses that ongoing risk management best practices is the name of the game. “These proactive steps can pay large dividends in shielding oneself and one's practice over the long run,” Dr. Kemper says.  

Nationwide Malpractice

A ranking of each US state according to frequency of malpractice suits—1 being least affected and 5 being most affected by malpractice suits. 

  • Alabama: 3

  • Alaska: 2

  • Arizona: 4

  • Arkansas: 3

  • California: 5

  • Colorado: 3

  • Connecticut: 4

  • District of Columbia: 2

  • Delaware: 2 

  • Florida: 5

  • Georgia: 4

  • Hawaii: 2

  • Idaho: 2

  • Illinois: 4

  • Indiana: 4

  • Iowa: 3

  • Kansas: 4

  • Kentucky: 3

  • Louisiana: 4

  • Maine: 2

  • Maryland: 4

  • Massachusetts: 4

  • Michigan: 4

  • Minnesota: 3

  • Mississippi: 3

  • Missouri: 4 

  • Montana: 4 

  • Nebraska: 2 

  • Nevada: 3

  • New Hampshire: 3

  • New Jersey: 5 

  • New Mexico: 3

  • New York: 5 

  • North Carolina: 4

  • North Dakota: 1

  • Ohio: 4 

  • Oklahoma: 4 

  • Oregon: 3 

  • Pennsylvania: 5

  • Rhode Island: 3 

  • South Carolina: 4

  • South Dakota: 1 

  • Tennessee: 4

  • Texas: 5

  • Utah: 3 

  • Vermont: 1 

  • Virginia: 4 

  • Washington: 4 

  • West Virginia: 5 

  • Wisconsin: 3

  • Wyoming: 1

Sources:

AMA: One in three physicians previously sued in their career. American Medical Association.

Bono MJ, Wermuth HR, Hipskind JE. Medical malpractice. In: StatPearls. StatPearls Publishing; 2023.

Charles SC. Coping with a medical malpractice suit. West J Med. 2001;174(1):55-58.

Florida’s “Free Kill” law makes it nearly impossible for patients to reach a malpractice settlement. MDLinx.

Georgia family of baby decapitated during birth claims doctor posted images online. USA Today.

Lowry SG. In medical malpractice claims, who gets sued: the doctor or the hospital? Harris Lowry Manton LLP.

Manning E. Possible medical malpractice reform in kentucky. Meinhart, Smith & Manning, PLLC.

Nabity J. 10 best states to practice medicine. Physicians Thrive.

Rueff J. What constitutes medical malpractice? Hampton & King.

Schloemann M. Tool: medical malpractice payouts by state | medpli. MEDPLI Professional Liability Insurance.

Study: ny had nation’s largest number of med-mal suits filed over last decade. New York Law Journal.

Surge in medical liability premiums increases reaches fourth year. American Medical Association.

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