Ike Devji, JD

 which states and specialties are highest paying and highest risk for doctors and where malpractice insurance premiums are trending. In 

 we looked at the effects of gender and age in determining how likely you are to face a lawsuit and the trend of malpractice claims getting bigger. Most recently, in 

, I provided details on the (growing) dollar amounts of the settlements and lawsuit verdicts that results in over 

 a year being paid out to plaintiffs by American physicians and their insurance carriers.

The first, best rule common to asset protection, risk management and the martial arts is the same; 

. Every physician should be aware of the most common causes of medical malpractice claims and have a rigid compliance and documentation system that supports every choice they’ve made with special attention to the following. This list comes from the Medscape annual medical 

 and is based on a survey of thousands of physicians, this is what the 

Know the 10 Most Common Causes of Malpractice Claims

Failure to diagnose or timely diagnose accounts for a full 33% of all claims

Complications from treatment or surgery make up another 29%

Delayed treatment or failure to treat 18%

Wrongful death claims cause 16% of claims

Poor documentation of patient instruction and education 4%

Incorrect administration of medication 3%

, but add specifics including childbirth, infection, and anesthesia.

Playing Defense with Diagnosis and Documentation

Use the Diagnostic Tools at Your Disposal

With a third of all malpractice claims centered around failure to diagnose, thorough use of all diagnostic tools reasonably available is vital to protect your patients and yourself. In a 

 I suggested that so called “defensive medicine”—a term embraced, if not coined by, insurance carriers aggrieved by paying for often expensive diagnostic procedures—was both good medicine and good business in terms of risk management for a physician. Very few cases are lost because a physician erred on the side of caution in ordering additional testing that was arguably medically appropriate, including more invasive testing that may be discretionary based on the severity of the patient’s condition.

The key question in most malpractice claims is: “Did you do the right thing?”. The determination as to whether or not your treatment met the prevailing standard of care is made by third party expert witnesses based on a combination of the patient’s history, their medical records, your diagnostics, and the documentation you create of the patient’s diagnosis and treatment. A lack of documentation can be used against you in legal proceeding, especially if it’s something material that you recall doing but failed to note.

EHR systems have certainly helped make the process more uniform and time efficient, especially when it comes to making sure that tests you have ordered have been completed and that the results have been reviewed with the patient. Despite those benefits, as Avery Hurt noted in an article here on Physicians Practice, 

, especially when it comes to the use of standardized responses like clickable boxes and pull-down menus. Experts advise that those input methods are supplemented with personalized notes in free text fields that provide patient specific details. Among the key points in Hurt’s article:

Documentation should always be contemporaneous, records completed or worse, 

, long after they care has been delivered tend to be less credible with juries and look self-serving.

It should include both the details of your care and treatment and the patients own compliance with your treatment plan and your efforts to contact them and follow up.

, 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

Articles

We continue our look at asset protection for physicians in the context of medical malpractice claims with a look at the causes of medical malpractice claims and thinking defensively about diagnosis and documentation.

Thinking defensively about medical malpractice

In part one of this series we looked at several 

 including which specialties get sued the most, which states are the highest risk for doctors and the growing trend of medical malpractice premiums rising. We also looked at 

 for those risks including which states and specialties pay physicians the most and the effects of gender and employment status on physician compensation.

 we examined physicians’ age, gender and employment status (self-employed vs. employed) as lawsuit risk factors, as well the fact that that medical malpractice awards have been growing in size for a number of years across the U.S. with the majority of states reporting judgments greater than $10 million over the last six years.

 that summarizes info from the HHS National Practitioner Data Bank adds some interesting details about medical malpractice payouts as well. It’s important to consider both 

, which vary widely based on the factors outlined above.

Here are a few notable points to consider in your risk own analysis:

In 2018, (the last year included in the study), over 

 was paid out to medical malpractice lawsuit plaintiffs

The total amount of annual payouts increased every year for the six previous years

 (as opposed to lawsuit verdict) across the U.S. is about $350K, but that number varies widely by geography and can be as much as $100K higher

 is about $400K, but the average claim for injuries like 

 is nearly $1MM. This puts the “average” for those claims right at the $1MM per-occurrence limit of most physicians and means that many of them are over that $1MM limit, making the physician was personally financially liable out of pocket for some portion of the claim.

 also pointed out spikes in the numbers of payouts in certain geographic areas but does not provide details as to why claims and payouts spiked in those areas.

New York topped the list, with an average payout of

in 2018. In New York, 1,535 claims were paid, totaling $685,317,000, and marking an 11% increase from the year prior. The second highest state average was in Pennsylvania, averaging at $405,978 based off 909 claims and a total of $369,034,250. Many states experienced astronomical payout increases over the previous year, such as Minnesota (101%), South Dakota (199%), and Vermont (a whooping 486% increase in 2018).

Expert tips to create a concierge-style patient experience

The details outlined above are a cold, mathematical look at settlement payouts that (hopefully) fall within the scope of the standard $1MM per occurrence, $3MM aggregate medical malpractice policies most doctors have. Of course, not being out of pocket on a claim is only part of the problem and overlooks the reputational damage, stress, trauma, and other effects of being involved in any litigation, but especially one that threatens your wealth and livelihood. Let’s look at the claim details that put you personally at risk and think of this beyond the standard, “Well, only a small percentage of claims go to trial and result in a verdict…”, and think about in more basic, practical terms. 

What if one of these claims is against you and it is your patient, your career and your assets at risk?

The majority of claims get settled – “only” about 4% go to trial

That 4% accounts for about $145 Million in payments resulting from court judgments

As someone who represents a large number of specialty physicians I regularly get panicked calls from other doctors seeking asset protection planning 

 something bad has happened, when the asset protection and risk management planning they should have done earlier won’t help them and ranges from 

. I can tell you that the facts and numbers outlined above provide 

 and it’s your life savings that are potentially on the line. That is precisely why the central theme of this column for the last decade has been identifying and managing all your 

We’ve taken a detailed look at med-mal claim numbers to help you make an objective, factual risk assessment. Next, we look at defense strategies. 

Asset Protection for physicians logically includes concerns about medical malpractice liability. We continue our look at the facts about malpractice including the real risks, numbers and defense strategies involved. 

Medical Malpractice and Asset Protection Part 3: Settlements and Verdicts

 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. 

than women by over two-to-one, 68% of lawsuits are against male physicians and only 32% against women. Women are 

 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.

Medical School Debt: Best practices when paying it off

Per the AAMC, these specialties have the 

Child and adolescent psychiatry — 54.0%

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.

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 

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.

Cybersecurity and ransomware: Tips, tactics, and updates

 “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 

. 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

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?

 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.

Self-employed physicians and medical practice owners face a variety of risks including medical malpractice claims. We continue our discussion of the numbers and facts behind these lawsuits.

Asset Protection and Malpractice Part 2: Numbers and facts

StethoscopeGavelKeyboardMalpracticeLaw_202753258.png

We’ve recently covered a variety of issues that can threaten physicians’ wealth ranging from the predictable and recurring seasonal 

 and the asset protection and estate planning issues associated with 

 investing. As much I have taken great efforts to remind physicians to think of their legal risk factors holistically— beyond just malpractice risk—and to include their risks as employers, investors, property owners, and even parents, medical malpractice claims remain a serious risk that requires proactive defensive planning.

We’ll start our review of medical malpractice lawsuit risk with a look at some facts and numbers that will help you understand and hopefully manage your position on the lawsuit food chain based on factors including specialty, location, and compensation. In addition to the details below, consider 

; male physicians generally earn more than their female colleagues (earning nearly sixty thousand dollars more a year among primary care physicians and nearly ninety thousand more among specialists) and self-employed physicians earn an average of just of fifty thousand dollars more per year than employed physicians in the same specialty.

Which Medical Specialties Get Sued the Most?

Here are the 10 specialties hit with the most lawsuits, according to a wide-ranging 

that surveyed a national sample of 4,300 physicians across 29 specialties.


1. General surgery
2. Urology
3. Otolaryngology
4. OB-GYN & Women's Health
5. Surgery, specialized
6. Radiology
7. Emergency medicine
8. Cardiology
9. Gastroenterology
10. Anesthesiology

Risk vs. Reward – Which Medical Specialties Earn the Most?

ranking of 29 distinct medical specialties

 where average earnings ranged from a low of $221K a year for pediatricians to a high of $526K a year for plastic surgeons, these are the top ten.

. The top ten states with the highest average physician income ranged from $329K to $348.

What States Are Highest Risk for Doctors?

Again, if you think that all the lawsuit action would be states with the highest populations or the biggest urban centers overflowing with plaintiff’s attorneys, you may be surprised. 

These are the top ten most litigious states

 for doctors, from a low of 63% (Arizona) of all physicians in the state being sued, to a high of 75% in Kentucky.

Top Ten Most Litigious States – Percentage of Physicians Sued

Malpractice insurance is a vital line of defense and after remaining steady for nearly a decade, prices are rising across the country according to a recent 

. From 2010 to 2018 insurance premium prices rose nationally on 12-17% of all specialties and varied widely based on location and specialty. They rose by about 25% in 2019 and 30% in 2020. Surprisingly, the report is explicit that the recent increase is not due to COVID-19 related claims, as there has not been time for the industry to adjust to data from 2020. Premiums and premium increases vary widely based on a variety of factors including medical specialty as well as the local legal climate including variances in both consumer and lawyer behavior. Geography is also a big factor, as one example OB/GYN faced base premiums ranging from $49,804 in one California county to over $200,000 in Miami.

These numbers provide the backdrop for our continuing discussions that will include at the causes of these claims and a variety of defense strategies available to informed physicians that will make you a hard target.

While physicians face many financial and legal risks, the elephant in the room is always your professional liability and the risk of a malpractice lawsuit. We start an in-depth look at the facts about these lawsuits including where they happen, who they happen to, and what they cost.