May 20, 2020

According to the American Medical Association (AMA), 34% of all physicians in the United States have been sued for medical malpractice during their medical careers. Almost half of U.S. physicians who are 55 and older have been sued for medical malpractice, and nearly 30% have been sued two or more times for medical malpractice.

According to the AMA, physicians practicing in some medical specialties are more likely to be sued for medical malpractice during their careers: more than 75% of general surgeons and obstetricians/gynecologists who are 55 and older have had a medical malpractice claim against them, and more than 50% of them have been sued for medical malpractice before they turned 55.

49.7% of obstetricians/gynecologists have reported that they have altered their practices since January 2012 due to the risk/fear of liability claims and litigation, and 39.8% of them have made changes to their practice due to medical malpractice insurance affordability or availability concerns (13.6% decreased the number of obstetric high-risk patients they accepted; 9.6% reported more cesarean births; 8.4% eliminated vaginal births after cesarean (VBACs) from their practice; and, 6.4% reported an overall decrease in the number of total deliveries).

Nonetheless, according to data from the Medical Professional Liability Association (MPL), 65% of medical malpractice claims closed between 2016 and 2018 were dropped, dismissed, or withdrawn. Of the 6% of medical malpractice claims that were tried, 89% were won by the defendant. MPL data show that the average indemnity payment on settled medical malpractice claims that closed between 2016 and 2018 was $372,309, and for the medical malpractice claims that were tried and resulted in the plaintiff’s favor during that time period, the average indemnity payment was $635,829.

By the age of 65, 99% of physicians in high-risk specialties in the United States have been subject to a medical malpractice claim, but 78% of those claims did not result in an indemnity payment.

The defense costs were more than twice as high for medical malpractice claims that resulted in indemnity payments than for claims where no indemnity payments were made.

Defensive Medicine

There are two types of defensive medicine. Positive defensive medicine (assurance behavior) is the tendency to provide more care to reduce liability risk. Negative defensive medicine (avoidance behavior) is the tendency to avoid high-risk procedures for a given patient or avoid risky patients altogether to reduce risk. Positive defensive medicine increases spending while negative defensive medicine decreases spending. The most recent studies that examined the effects of tort reforms on hospital, physician, and total Medicare spending found that noneconomic damage caps either raised, lowered or did not affect spending, which led the CBO to conclude that noneconomic damage caps do not affect total Medicare spending. Nonetheless, the AMA has stated that it is “committed to advocating for traditional reforms—such as caps on noneconomic damages—as the cornerstone to fixing the broken liability system … enacting a $250,000 cap in states without caps, or with higher-level caps, would result in premium savings of $1.4 billion annually.”


The AMA focuses on the effects of medical malpractice tort reforms on health care spending, including the costs of medical malpractice insurance. Reducing health care sending is a laudable goal, but shouldn’t patient safety be the ultimate goal of the health care system in the United States? Is it unreasonable to believe that limiting medical providers’ financial exposure for the unnecessary harm they cause to patients by medically negligent medical care acts as a disincentive to medical providers to improve the quality of the medical care they provide because they are shielded from taking full responsibility for the harms they inflict? Is it fair for negligent medical providers to be granted exemptions for their wrongdoing at the expense of the innocent victims of medical malpractice who are precluded from being adequately compensated for the injuries they suffered? For example, in California, where there is a $250,000 cap on noneconomic damages in medical malpractice cases, is such amount adequate compensation for the parents of a child whose life was lost due to avoidable medical malpractice? What incentive does the California medical provider have to improve patient safety in the future if his/her liability is limited to $250,000?

If you or a loved one may have been injured as a result of medical negligence in the United States, you should promptly find a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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