Forty-one percent of US psychiatrists have been sued for malpractice at least once, findings from the newly released Medscape Psychiatrist Malpractice Report 2019 show.

The top reason for the legal action was wrongful death (31%), followed by poor outcome/disease progression (23%), failure to treat/delayed treatment (11%), errors in medication administration (10%), and complications from treatment/surgery (8%).

Only 7% of psychiatrists said failure to diagnose/delayed diagnosis was the reason for the lawsuit, whereas this was the top reason for physicians overall (33%) in the Medscape Malpractice Report 2019.

Medscape surveyed 4360 physician members in more than 25 specialties about whether they have been sued for malpractice, reasons for a lawsuit, what happened, and how the experience affected the way they practice medicine and interact with patients.

Among psychiatrists named in a lawsuit, 44% said they were very surprised to be the subject of litigation. A similar percentage reported they were somewhat surprised (41%), while 15% were not at all surprised.

The vast majority of psychiatrists (87%) believed the lawsuit was not warranted, while 11% were unsure. Only a small percentage (2%) believed that legal action was justified, the lowest percentage of all physicians (6%).

Among psychiatrists who were sued, 42% were able to identify the incident that sparked the lawsuit. A slightly higher percentage (47%) said there was no specific incident that spurred legal action; 11% couldn't recall.

Psychological Factors

"There's a whole host of what you could call psychological factors that can contribute to the filing of a claim," David S. Szabo, Esq, malpractice defense attorney with Lock Lorde LLP, Boston, Massachusetts, told Medscape Medical News.

"These can occur when a patient perceives a breakdown in the doctor-patient relationship or is pretty certain that there's been a mistake and they feel like they've been shut out of productive conversation with their healthcare provider or providers," said Szabo.

Legal action eats up time. A total of 43% of psychiatrists reported spending more than 40 hours on their defense, which involved gathering records, meeting with attorneys, and preparing for depositions.

Forty-six percent reported that the entire process took 1 to 2 years to resolve, but nearly a quarter (23%) said the process dragged on for 3 to 5 years.

One third of psychiatrists who were named in a malpractice lawsuit said the case was settled out of court. Of the cases that went to trial, 12% of psychiatrists reported that the verdict was in their favor; 3% reported that the outcome of the case was in the plaintiff's favor.

Asked why they think most malpractice lawsuits occur, 61% of psychiatrists said that patients don't understand medical risks and blame the doctor for bad outcomes even if the doctor does everything right.

A similar percentage of psychiatrists recognized that if a true medical error has occurred, patients want to seek restitution and/or assign blame. Only 29% of psychiatrists felt that constant advertising by lawyers to get new clients is the reason for most malpractice cases.

The overwhelming majority of psychiatrists (93%) who responded to the survey carry malpractice insurance, about the same as physicians overall (94%).

Among those with malpractice coverage who either settled or went to trial, about half were either encouraged by their insurer to settle the case or were required by their insurer to do so.

"Generally, if a physician senses that he or she is heading toward a difference of opinion with the insurer about settlement, they probably ought to invest a little time in having personal counsel look at the case," Szabo said.

Practice Changing?

Facing a lawsuit can be devastating for any physician, but nearly half (48%) of psychiatrists surveyed said they made no changes after the case was resolved.

Just over a quarter (27%) of psychiatrists said the legal action prompted a change in their approach to patients. In addition, 8% said they left their practice setting, and 3% said they bought more malpractice insurance.

Among psychiatrist cases that resulted in a settlement or a verdict in the plaintiff's favor, nearly half (48%) of monetary awards maxed out at $100,000, while 31% maxed out at $500,000, and 8% at $1 million.

More than half of psychiatrists (55%) named in a lawsuit believed the outcome of the case was fair; 45% felt it was unfair.

Psychiatrists reported that in retrospect, they would have done several things differently. These included maintaining better documentation of their patient's chart (20%) and not taking on the patient in the first place (15%), followed by spending more time with the patient and his/her family (11%), getting a second opinion from a colleague (9%), and reviewing the history/chart more carefully (7%).

About three quarters of psychiatrists felt that saying sorry or offering an apology to the patient would not have prevented the lawsuit. This is a lower percentage than was indicated by all physicians (82%) who have been sued.

Psychiatrists believe the best ways to discourage lawsuits is through better patient communication and rapport (59%) and having a medical panel screen cases for merit (50%).

About half of psychiatrists (51%) and more than half (56%) of all physicians believe that medical organizations or state societies are not doing enough to discourage malpractice cases.

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