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The topic of medical malpractice evokes strong emotions from most physicians. There are often feelings of anger over being sued for what was perceived to be reasonable medical care. Fear may surface as physicians enter into a process with which they are likely unfamiliar. Depression is also common due to the long-drawn-out litigation process, the likelihood of a medical malpractice insurance premium increase, and the social isolation that often accompanies medical malpractice lawsuits. This chapter will attempt to summarize the process of medical malpractice litigation and will address some of the misconceptions often held by physicians involved in medical malpractice lawsuits.

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What Are the Chances of Being Sued for Medical Malpractice?

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Statistics vary as to the extent and outcome of medical malpractice litigation in the United States. National Practitioner Data Bank1 data show that from 1991 to 2003, the total number of paid malpractice claims remained fairly stable—ranging between 14,039 and 16,682 paid claims per year. During that same time frame, the total amount paid in claims for US physicians more than doubled from $2.12 billion to $4.45 billion.2 More recent reports show that this trend is reversing. Between 2004 and 2011, the number of medical malpractice payments made on behalf of physicians has steadily diminished, shrinking from 14,304 payments in 2004 to 8450 payments in 2011. Similarly, the total amount of payments made on behalf of physician defendants has steadily decreased from $4.4 billion in 2004 to $2.82 billion in 2011.3

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The costs of defending medical malpractice claims can be substantial. The average cost associated with defending a claim between 1995 and 2005 (using 2008 dollars) was $22,959.4 Costs for defending claims in which a payment to the plaintiff was made averaged $45,070, and costs for defending claims in which no payment was made averaged $17,130. Costs for defending emergency medicine claims were below the mean in both categories and were in the lower third of specialties overall.

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A large retrospective review of emergency department (ED) medical malpractice claims between 1985 and 2007 identified 11,529 cases arising from an event that originated in the ED.5 Emergency physicians were the primary defendants in 19% of those claims, and payments for those claims totaled $664 million. Seventy percent of ED-related malpractice claims closed without payment to the plaintiff. Thirty percent were settled or ended in a trial verdict in favor of the plaintiff. Only 7% of total claims progressed to trial, and of those 85% of cases were decided in favor of the physician.6 Considering that there are well more than 100 million ED visits each year in the United States,7 the statistical odds of an emergency physician being involved in a malpractice lawsuit seem to be quite low. However, each year roughly 7.6% of emergency physicians face a medical malpractice claim and each year approximately 1.5% of emergency physicians make some form of payment to a malpractice ...

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