Medical Malpractice and Asset Protection Part 2: Numbers and facts

Part one of our look at medical malpractice risk in 2021 started with some hard facts and numbers that doctors should know about their professional liability. That discussion included details like which medical specialties are highest risk, which ones pay the most, which states are highest risk, and which states pay physicians best. Part two continues a look at additional relevant details that will help you to assess your own risk.

Do Male or Female Doctors Get Sued More Often?

We previously covered the gender-based differences in physicians’ compensation, significantly in favor of men, and there is also a difference in how the lawsuits fall between the sexes. Male physicians are sued more often than women by over two-to-one, 68% of lawsuits are against male physicians and only 32% against women. Women are increasingly part of the physician workforce every year according to the AAMC and made up about 36% of the total number of employed physicians in 2019, up from about 28% in 2007. There is also a correlation between lawsuit risk, gender, and specialty.

Per the AAMC, these specialties have the highest number of women physicians:

• Pediatrics — 64.3%
• Obstetrics and gynecology — 58.9%
• Child and adolescent psychiatry — 54.0%
• Neonatal-perinatal medicine — 52.8%

These specialties have the fewest number of women physicians.

1. Urology 9.5% 
2. Pulmonary Disease 12.3%
3. General Surgery 22%
4. Ortho Surgery 5%

Interestingly, women are also becoming a larger part of some specialties, including higher risk practices like orthopedic surgery, which has grown as specialty by nearly 40% since 2014 as a subspeciality within sports medicine (50% growth) and emergency medicine (17% growth) in the same period. This may also increase the number of female physicians that get sued and who may now enjoy a (temporary) actuarial advantage with their insurance carriers.

Malpractice Awards are Getting Bigger

While the number of claims fluctuates, the amount of the awards, including awards that may be over your $1MM policy limits, has been steadily increasing. One recent report published in Physicians Practice outlined some of the details:

Severity - the average cost of a medical malpractice claim-continues its relentless increase. Though this is a long-term trend (severity has not decreased since we started tracking it in 1976), we are now seeing a sharp increase in outlier verdicts. These are awards well in excess of common policy limits, often setting records for the venue in which they are made.

Nationwide, the percentage of medical malpractice claims greater than $500,000 increased from less than 10 percent in 1999 to almost 20 percent in 2017. The number of verdicts in excess of $25 million has increased from four in 2014 to 17 in 2018. Nearly all states have seen these awards, with 41 states reporting verdicts greater than $10 million during the last six years.

Does Age Make a Difference?

According to a recent AMA report “Medical Liability Claim Frequency Among U.S. Physicians” age plays a factor in both how likely it is a physician has been sued and how likely it is they have been sued more than once. Logical correlation, the longer you practice, the more patients you see, the greater the risk.

The probability of getting sued increases with age. This is not surprising given that older physicians have had more exposure to risk of lawsuits because they have been practicing for longer periods of time. Whereas 8.2 percent of physicians under the age of 40 have been sued, almost half of physicians over the age of 54 have been. The probability of being sued two or more times and the average number of claims filed against physicians increase with age as well. Although fewer than 2 percent of physicians under 40 have been sued at least twice, this fraction rises to 28.0 percent for physicians ages 55 and over.

Do Practice Owners or Employed Doctors Face More Claims?

Again, the AMA report by José R. Guardado, PhD had some interesting data.

• Employed physicians and owners are sued equally and employees are more likely (by 3%) than owners to have had two or more claims filed against them, with 12 more claims per 100 physicians than owners.

• These numbers are driven by employed physicians in single specialty, a few physicians with a relatively large number of claims.

More to come next time, stay safe out there.

_{About the Author}

_{Ike Devji, JD, has practiced law exclusively in the areas of asset protection, risk management and wealth preservation for the last 16 years. He helps protect a national client base with more than $5 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter. Learn more at www.ProAssetProtection.com.}