Here’s your multiple choice question to set the stage: what percentage of all physicians do you think should be sued for malpractice?

Would you say one-in-ten doctors ought to be sued? Or one-third? How about every single one of them? Let’s make it one claim per doctor, nationwide. Does that sound reasonable? Keep in mind that even defending yourself against a suit will cost on average $40,649 per claim, ranging from a low of $22,163 among claims that were dropped, dismissed or withdrawn, to a high of over $100,000 for tried cases – even if you win. And these costs will be borne not just by the insurance carrier, but many times also by the individual physician who must hire their own lawyer. While making your choice, keep in mind that many (if not most) primary care providers are now bringing home less pay than elementary school principals.

Before we get to our results, here’s my Obligatory Malpractice Bias disclosure: I’m one of those docs who strongly believes that we, as a medical profession, don’t do enough to police ourselves. And that handing that task over to others assumes they know what it’s like to be in the trenches. What do I mean by that? In general, other healthcare providers know when someone is doing a crap job long before a person outside the profession might notice. So asking others to step in and take over the task of oversight is actually a disservice to families and patients, making our lack-of-stepping-up all the more inexcusable. and, I’m also one of those renegade docs who thinks that sometimes a malpractice lawsuit is the only way to go. If for no other reason than the lack of other options, plus the issue that, frankly, people are dying.

So it was something of a shocker to myself, to realize that, all those things not withstanding, maybe we as a society have gone way, way (let me repeat, way) too far on the malpractice litigation front (well, duh, many of you in healthcare are thinking). What prompted this conversion? This shocker insight? It wasn’t being personally slapped with a lawsuit. It wasn’t even (I’m ashamed to admit) seeing my friends/colleagues being frivolously sued (which I’ve seen – along with the massive emotional and professional fallout that ensues). It was, instead, the study that the AMA recently released to almost no response. What were this study’s results?

There’s basically one claim per doctor being filed in America right now. If you’re a surgeon, or an ob-gyn, a fat 70% of you will be sued, with 90% of surgeons sued before the end of his/her career. In any individual year, one-in-20 doctors is sued, but over years of a career, the accumulated percentages of doctors who have been sued goes sky-high. Half of all ob-gyns are sued before they reach the age of 40 (which, given how old you must be to just finish your training, is a breath-taking number).

And, leaving aside issues of right and wrong (which the AMA frequently does), what is the outcome of all these lawsuits? “Sixty-five percent of claims were dropped, dismissed or withdrawn, 25.7 percent were settled, 4.5 percent were decided by alternative dispute mechanism, and 5.0 percent were resolved by trial, with the defendant prevailing in 90 percent of those tried cases.” In other words, a huge amount of churn, especially the 65% of claims that are dropped, dismissed or withdrawn, at the cost of $22,000 per claim. And I’m not even going to discuss the emotional fallout, or the way physicians stop caring for “certain” types of patients, or how the cost of healthcare spirals as doctors practice non-sensical “defensive” medicine. Those are the types of damages and costs that are, frankly, too large to even get your mind around, much less quantify.

So what was the response to this study from the leave-litigation-alone front? That, for me, was another bit of a shocker. No one contested the results. No one. Instead, the response was, basically, that people die of medical errors – and that something should be done about it. And, that medicine does a bad job of policing itself.

Both of those are positions I totally agree with. But these responses are (perhaps deliberately) conflating together three different things. Errors and malpractice are not at all the same thing. And there are two different kinds of error – individual errors (“mistakes” if you will), and system errors.

Malpractice (as the name implies) is supposed to be doctors that shouldn’t be practicing. This study’s rate of widespread sue-age (or “sewage,” depending on your belief about how big a mess this is), means that no doctor is allowed to be even normal, much less good at their job. It’s only a matter of time, no matter how conscientious or excellent you are, before you’re a target of a malpractice lawsuit. Is someone actually going to argue that every surgeon in America deserves to be sued because their practice is so bad? If so, bad compared to what? It’s kind of like Lake Woebegon, where everyone is above average. Only in the world of medical practice, everyone sucks.

Errors, on the other hand, are a horrific, and sometimes preventable, factor in healthcare. But there are at least two different types of errors. Individual errors by physicians are not at all the same thing as system errors. Individual errors are an unfortunate, but necessary, part of being human. Here’s an example of one. My first ever night being on call as an intern, I was vibrating with stress. Literally – you could see me shake. I wrote, in a frenzy, for a patient to receive Colace, as needed, for insomnia. The pharmacy sent back a note which states that “while not contraindicated, this drug is unlikely to result in the desired effect.” Colace, as many of you may know, is a laxative. There’s an embarrassing mistake. Every doctor will make one, hopefully one that won’t hurt anyone, or will be caught by the team. Who could claim that they would never, ever make a mistake in their entire medical career?

And then there is the issue of system errors, over which a doctor has essentially no control. What do I mean by that? For example, I went to get my rabies shot to prepare for going to Haiti. The injection clinic nurse tried to give me a shingles shot. Clearly that is not at all the same thing. My doctor wrote the right prescription, and the clerk entering the data, and the nurse who never asked me which injection I was supposed to get, both made large, avoidable, system errors. The only person who did what she was supposed to do was my doctor. and she has absolutely no control – economically or even as a supervisor – over either the clerical staff or the nursing staff in an institutional setting. But the doctor is the one who is sued.

And studies have shown (also uncontested by the leave-litigation-alone front) that malpractice lawsuits fail when it comes to medical errors – in both directions. People who’ve suffered from errors both don’t sue, and lose suits, in the same percentages that people who sued have not suffered from errors. In other words, it’s a crap-shoot.

Jan Gurley is an internal medicine physician who blogs at Doc Gurley.

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