Attitudes to Malpractice

SUMMARY: Physicians are pervasively fearful of being sued. They hold distorted views about the prevalence of medical errors, their own risk of being sued, and the attitudes of their patients to medical malpractice litigation. Physicians are generally reluctant to acknowledge mistakes to themselves, their patients and their colleagues.

Medical malpractice counsel can benefit from better understanding of the emotions, faulty beliefs and behaviours of physicians, whether as Defendants or expert witnesses.

Fear of Litigation

A postal questionnaire answered by more than 350 full-time physicians at a south-eastern US teaching hospital documented¹ how pervasive is fear of litigation, and which groups of physicians are the most fearful.

More fearful were women physicians compared with men, those under 40 years of age compared with older physicians, and those without board certification. Unjustifiably fearful were psychiatrists and rehabilitation specialists. Physicians with more than 16 years of clinical experience were less afraid of being sued.

Practice Point

Physicians who are most fearful:

female
young
not board-certified
inexperienced

Erroneous Beliefs

They hold distorted views about the prevalence of medical errors, their own risk of being sued, and the attitudes of their patients to medical malpractice litigation.

Medical Errors

The Institute of Medicine estimates of US annual deaths from medical error are less soundly based than their figures for error prevalence². Nevertheless, the widespread belief³ among physicians that the health care system matches the safety record of other industries is demonstrably incorrect.

This faulty assessment may arise in part from the emotional distress that having made a mistake characteristically causes physicians⁴. However, it may also arise from well-founded scepticism⁵ about the preventability of many of the adverse outcomes, including death.

Litigation Risk Assessment

As we noted previously, earlier research had documented physicians' overestimates of their likelihood of being sued. In the later study of teaching hospital physicians¹, most of the physicians surveyed believed that lawsuits against physicians were not rare, that lawyers actively sought cases against physicians, and that they personally would eventually be sued by a patient. Almost half felt that the law favoured Plaintiffs over Defendants.

Patients

They perceived patients as suing because they thought their physicians were uncaring, and that patients were dishonest in their complaints about physicians. Nearly half the doctors considered each patient a possible source of litigation, some believing that patients would sue if given the opportunity. They typically believed - incorrectly - that certain types of patient were suit-prone⁶: those of low socioeconomic status, those who had previously sued and patients who requested second opinions.

Practice Point

Characteristic erroneous beliefs:

errors are uncommon
will probably be sued
many patients are litigious

Behaviour

Physicians are generally reluctant to acknowledge mistakes to themselves, their patients and their colleagues.

As discussed elsewhere, most of the time physicians do not acknowledge their mistakes to their colleagues or their patients, and this silence is not only contrary to patients' wishes but self-defeating.

In hypothetical situations, a third of surveyed physicians would practise deception in discussing with the family a death from medication error⁷and only about 60% of ophthalmologists would report any and all surgical complications⁸^[full-text^].

The majority of physicians want to talk to a supportive colleague about errors, but less than a third would offer such support unconditionally⁹.

Practice Point

Physician attitudes that prevent error disclosure:

competitiveness of medical practice
belief in physician control
difficulty in acknowledging fallibility
"first do no harm"