Medical Malpractice Lawsuits Influence Care—and Costs

Most patients don’t understand how often even the best physicians are sued. For example, each year, roughly 20 percent of U.S. neurosurgeons face medical malpractice litigation. And physicians in some specialties, including every kind of surgery, practice with a perpetually elevated risk of facing medical malpractice allegations. Over the span of a career, approximately one-third of physicians will experience litigation.

Disappointment vs. Negligence

Any unexpectedly adverse outcome in healthcare poses a risk of litigation—even when the patient has experienced a known complication of the procedure.

Biology is not like an automated machine line. The human body is mind-numbingly complex. The ability to predict the outcome of a novel drug therapy, a difficult surgery, or a fight against multiple diseases at once cannot be reduced to an algorithm.

Nonetheless, modern medicine is so remarkably good that patients have come to expect miracles. The practice of medicine keeps getting more impressive and safer every year, but it’s a long way from being 100 percent. In fact, researchers studying patient recoveries termed “medical miracles” have found that it’s more experienced physicians who have the “greater appreciation for the unpredictability and uncertainty of medicine.”

A Litigious Culture

If the medical malpractice system identified only bad physicians, then physicians wouldn’t be vindicated in over 80 percent of claims against The Doctors Company’s members. The vast majority of medical malpractice litigation is misguided. On average, a physician and plaintiff go through years of legal process, but ultimately the plaintiff receives no compensation, because the courts conclude there was in fact no malpractice.

The Case for Medical Malpractice Litigation—and Its Cost

Indemnification is important for patients who suffer injury due to professional negligence, and we recognize this public value. However, there is an enormous price tag attached to suits that are found to be nonmeritorious—and again, among physicians insured by The Doctors Company, that’s more than 80 percent of the suits. These fruitless cases add to everyone’s healthcare bill.

Most people are familiar with the idea of inflation, but in medical malpractice insurance, we face social inflation, meaning the cost to resolve medical malpractice claims is rising faster than general inflation. How much faster? In the decade ending in 2021, social inflation by itself added between $2.4 and $3.5 billion, or 8 to 11 percent, to medical malpractice losses incurred by physician-focused insurers.

Eventually, medical malpractice premiums are forced upward to reflect this increasing cost, affecting the cost of care for virtually everyone.

How Medical Malpractice Costs Affect Access to Care

Medical malpractice insurance is included in the overhead for those who deliver care, whether individual doctors, clinics, or hospitals. Operating expenses like insurance premiums get added on to the ultimate bills we pay as patients.

To the extent that medical malpractice insurance is unaffordable, access to care is seriously impaired. For instance, when obstetricians in rural areas cannot afford medical malpractice insurance to cover deliveries, they may be forced to move. This leaves more patients residing in our expanding patchwork of maternity care deserts—a desert covering more than one-third of counties in the U.S.

Defensive Medicine and Our Standard of Care

The standard of care is supposed to be a medical standard of care, but the reality is, in our society, it is a medical-legal standard of care. For fear of being sued, clinicians change their practices. Defensive medicine may consist of actions taken or not taken:

• In “positive” defensive medicine, doctors may order more tests than necessary, extend hospital stays, or otherwise take actions that create more liability self-defense than patient benefit.
• In “negative” defensive medicine, they may reshape their practice to avoid treating patients in high-risk scenarios.

The results of “positive” defensive medicine include more testing and more cost for the system. One recent estimate put the annual price tag of defensive medicine at a minimum of $50 billion.

Patient Safety: A Rising Tide That Lifts All Boats

We’re actively seeking legal reforms to make the courtroom environment less onerous for physicians. We gather and analyze data from across the country and translate the findings into information that helps decision makers make informed choices. Various researchers and professional societies, including the American Medical Association, have sounded the alarm about the effects of litigation-related costs on access to care.

We facilitate the practice of good medicine nationwide through our patient safety team, our publications, and our funding of original research and programs:

• We provide data that informs medical professional societies as they define best practices.
• When medical professional societies determine new guidelines, The Doctors Company helps promote those guidelines to educate our members.
• We distribute insights from our studies through our website, at professional events, and through communicating with partner organizations.
• The Doctors Company Foundation funds patient safety education for healthcare professionals in training and in practice, as well as patient safety research with clinically useful applications.

Protecting Our Members While Mitigating Patient Risks

The Doctors Company provides medical professional liability insurance for healthcare professionals nationwide. We have no shareholders: It is the insured clinicians, our members, who own the company. With more than 90,000 members, we’re the largest physician-owned medical malpractice insurance company in the United States. As such, we remain closely aligned with the medical profession and have an unmatched understanding of the risks of today’s practice environment. Our medical malpractice insurance coverage offers unique features, such as access to personalized risk management services and patient safety programs, that mitigate liability risks for clinicians while improving safety for patients.

We are building an enduring national platform to advance, protect, and reward the practice of good medicine.