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While nearly 75% of physicians in low-risk specialties and 99% of physicians in high-risk specialties may face a malpractice claim in their careers,1 malpractice is rarely discussed openly in medical school, residency, fellowship, or even amongst colleagues. Indeed, one study suggested that more than 10% of practicing gastroenterologists may face a malpractice claim,2 with gastroenterologists expected to spend 10-15% of their careers with an outstanding malpractice claim3 as cases may take 27-29 months to resolve on average.4
Believing that if a physician is sued, one must have done something “wrong” or that speaking about one’s experience may implicate a colleague, creates an intense stigma and isolation that only serves to aggravate the “second victim syndrome” (SVS) that is well documented in the surgical literature.2 Herein,
What is Malpractice? Why Do Physicians Get Sued?
Malpractice is defined as negligence on the part of a physician which causes physical or emotional damage to the patient. This requires a variety of legal issues to be evaluated (e.g. breach of duty between the physicians and patient, breach of standard of care), that often center around the question: would a “reasonable, careful, and prudent” doctor behave in the same manner in the same circumstance?
While some fields of medicine lend themselves better to algorithmic applications of highly evidence-based guidelines, many aspects of GI care and endoscopic practice are highly physician/patient-specific, dependent on local expertise, and based on low-quality evidence. As a result, an assessment of negligence may be quite subjective, depending on the expert retained by a plaintiff. Conflicting expert testimony on what professional custom is and whether practice deviates may hinge on technical details that may or may not be appreciated by a lay jury.
Plaintiffs must prove both that they have sustained an injury and that the injury (emotional or physical) was due to the physician’s negligence. While this may be straightforward in a “slip-and-fall” tort claim, medical malpractice claims usually involve sick patients with multiple comorbidities, where assigning causality to a single intervention/misinterpretation/missed opportunity is difficult to weigh against competing causes of adverse outcomes. Assessing a specific liability requires that the plaintiff prove this to a “more likely than not” standard which may be part of the reason why only 30% of cases are closed with indemnity payments, a figure that has not changed significantly in the past decade.4
While the perception amongst physicians is that tort legislation is ever increasing, data from the National Practitioner Data Bank (NPDB) demonstrates that the number of paid claims against physicians has decreased by 75% in the last 20 years.5 This may reflect a progressive improvement in the quality of care delivered or success of “tort reform” on the state level to limit damages and “nuisance” lawsuits. However, another more problematic possibility is that with the corporatization of medicine, an untold number of physicians may be removed from litigation as a named party, with their institution shielding them from reporting. While the number of cases may or may not be declining, the average indemnity payment appears to be rising to $330,000 on average,4 with one study suggesting a significant growth in paid claims in gastroenterology.6
Historically, studies of closed malpractice claims have demonstrated that 59% involved diagnostic errors involving a cancer diagnosis,7 though why this actually happens may be for a wide variety of reasons including errors in the development of a differential diagnosis, ordering of an appropriate diagnostic test, interpretation of the diagnostic test, or follow-up of an abnormality identified.
What are the Intended/Unintended Consequences of Litigation?
The objective of our tort system is to compensate patients for economic damages (medical costs and lost wages) and non-economic damages (pain and suffering), and to ideally deter negligent behavior of providers. Interestingly, data from the NPDB have suggested that approximately 1% of all physicians account for 32% of all paid claims, with the same study showing that among physicians with paid claims, 4% had at least 3.8
While certain fields are obviously more prone to litigation, the risk of additional claims on a physician with 3 prior claims was more than 3 times that of physicians with 1 lifetime claim. One would assume that the system was built to drive out a small proportion of “bad actors.” Indeed, similar data from the NPDB has demonstrated that the number of claims against physicians was associated both with their leaving the practice of medicine and relocating to smaller practice settings.9
Another frequent question is whether the threat of litigation drives “defensive medicine” (i.e. medical care that is not beneficial) or avoidance medicine (i.e. excluding high risk patients and procedures from ones’ practice). These behaviors have been well documented in physicians around the world,10 as well as several surveys of gastroenterologists specifically suggesting regular ordering of unnecessary imaging/endoscopy and referrals of patients to specialists that may not be necessary.11,12
However, does defensive medicine work: does spending more prevent you from being the target of a lawsuit? In an observational study in Florida from 2000-2009, researchers demonstrated that across specialties, greater average spending by physicians was associated with a reduced risk of incurring a malpractice claim. Indeed, the likelihood of a top quintile spending internist having a malpractice incident vs a bottom quintile spending internist was 0.3% vs 1.5%.13
Approximately 10.4-43.3% of physicians may experience SVS, experiencing trauma after an adverse patient event/medical error, manifesting with psychological trauma (shame, guilt, anxiety) and cognitive limitations (burnout, stress).2 Significant emotional consequences are common on the part of the physician and have well-documented stages to recovery,14 which if ignored may lead to long-term detrimental mental/emotional health of the physician and their future patients.
Specifically, in one study, 80.8% of physicians who had a closed malpractice claim reported significant emotional distress (regardless of the legal outcome), with frequent reports of mood symptoms that affected professional conduct.15 Recognizing these effects and implementing peer counseling and institutional support may help to expedite recovery and mitigate future adverse career outcomes.14
Anatomy/Timeline of a Liability Lawsuit
Medical malpractice cases are heard in state courts, in the jurisdictions where the care was provided. From the time an event occurs to when a jury verdict may be rendered may take 4-5 years or more depending on the local statute of limitations, discovery process, backlog of the local case docket, and specific circumstances of the case. The length of time is important to consider given the likelihood that a physician may advance in training or move practice locations during the course of litigation. Several common myths surrounding this process are summarized in the accompanying box, titled “Myths Surrounding Medical Liability Litigation.”
The plaintiff faces a statute of limitations to file a lawsuit that may range from 1-6 years depending on the state. The first indication that legal action may be pending will generally be a plaintiff’s formal request for medical records. After these records are reviewed, the plaintiff’s attorney will consult one or more experts (often credentialed in the same specialty) to assess if the case is viable and to ultimately form the basis of an affidavit of merit from a plaintiff expert.
Once the lawsuit is filed, the physician(s) named will be assigned an attorney by their employer/insurance company. A state medical board malpractice questionnaire will generally follow that will seek to independently evaluate the alleged malpractice with interrogatives to determine if censure is warranted. There is a formal response to the plaintiff’s petition by the defense and then the discovery phase begins where both sides depose the defendants/plaintiffs and retain medical experts that are favorable to their arguments.
In choosing potential “experts,” physicians must ensure that they are willing/able to be present for a potential trial, do not have any personal/professional/academic conflicts with the defendants, and are willing to provide compelling testimony to a jury. A pre-trial conference and trial date is set which may be >12 months away depending on the local docket. While the amount of time a trial may take is variable, it may be up to 5-7 days that the defendants are expected to be in court in addition to days where depositions are being taken.
During the discovery process, dismissal of the physician from the lawsuit is pursued. In addition, settlement negotiations generally proceed in parallel with discovery process and may result in a pre-trial/pre-verdict settlement. Once a verdict is reached, whether for the plaintiff or the defendant, the case may be appealed, and the trial preparation process may be repeated.
Conclusions
Awareness of the medical liability process is critical for trainees and attendings alike, given the high likelihood of litigation in a gastroenterologist’s career. Specific considerations like local tort law and malpractice coverage are important to be familiar. Ongoing health services research help to shape our understanding on the intended and unintended consequences of litigation on medicine, though detailed data on outcomes/settlements are limited by confidentiality agreements, which may hamper efforts to improve patient safety.
Dr. Das is associate professor of medicine in the Division of Gastroenterology at Washington University School of Medicine, St. Louis, Missouri. He has served as a consultant for Olympus, but has no other relevant conflicts.
References
1. Jena AB, et al. Malpractice Risk According to Physician Specialty. N Engl J Med. 2011 Aug. doi: 10.1056/NEJMsa1012370.
2. Chong RIH, et al. Scoping review of the second victim syndrome among surgeons: Understanding the impact, responses, and support systems. Am J Surg 2024 Mar. doi: 10.1016/j.amjsurg.2023.09.045.
3. Seabury S, et al. On Average, Physicians Spend Nearly 11 Percent Of Their 40-Year Careers With An Open, Unresolved Malpractice Claim. Health Aff Proj Hope. 2013 Jan. doi: 10.1377/hlthaff.2012.0967.
4. CRICO Strategies. Medical Malpractice in America: A 10-Year Asessment with Insights. 2018. Accessed Apr 28, 2025.
5. Studdert DM, Hall MA. Medical Malpractice Law — Doctrine and Dynamics. N Engl J Med 2022 Oct. doi: 10.1056/NEJMp2201675.
6. Schaffer AC, et al. Rates and Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014. JAMA Intern Med. 2017 May. doi: 10.1001/jamainternmed.2017.0311.
7. Gandhi TK, et al. Missed and Delayed Diagnoses in the Ambulatory Setting: A Study of Closed Malpractice Claims. Ann Intern Med. 2006 Oct. doi: 10.7326/0003-4819-145-7-200610030-00006.
8. Studdert DM, et al. Prevalence and Characteristics of Physicians Prone to Malpractice Claims. N Engl J Med. 2016 Jan. doi: 10.1056/NEJMsa1506137.
9. Studdert DM, et al. Changes in Practice among Physicians with Malpractice Claims. N Engl J Med. 2019 Mar. doi: 10.1056/NEJMsa1809981.
10. Ries NM, Jansen J. Physicians’ views and experiences of defensive medicine: An international review of empirical research. Health Policy. 2021 May. doi: 10.1016/j.healthpol.2021.02.005.
11. Hiyama T, et al. Defensive medicine practices among gastroenterologists in Japan. World J Gastroenterol. 2006 Dec. doi: 10.3748/wjg.v12.i47.7671.
12. Elli L, et al. Defensive medicine practices among gastroenterologists in Lombardy: Between lawsuits and the economic crisis. Dig Liver Dis. 2013 Jun. doi: 10.1016/j.dld.2013.01.004.
13. Jena AB, et al. Physician spending and subsequent risk of malpractice claims: observational study. BMJ. 2015 Nov. doi: 10.1136/bmj.h5516.
14. Scott SD, et al. The natural history of recovery for the healthcare provider “second victim” after adverse patient events. BMJ Qual Saf. 2009 Oct. doi: 10.1136/qshc.2009.032870.
15. Gómez-Durán EL, et al. Physicians as second victims after a malpractice claim: An important issue in need of attention. J Healthc Qual Res. 2018 Oct. doi: 10.1016/j.jhqr.2018.06.002.
While nearly 75% of physicians in low-risk specialties and 99% of physicians in high-risk specialties may face a malpractice claim in their careers,1 malpractice is rarely discussed openly in medical school, residency, fellowship, or even amongst colleagues. Indeed, one study suggested that more than 10% of practicing gastroenterologists may face a malpractice claim,2 with gastroenterologists expected to spend 10-15% of their careers with an outstanding malpractice claim3 as cases may take 27-29 months to resolve on average.4
Believing that if a physician is sued, one must have done something “wrong” or that speaking about one’s experience may implicate a colleague, creates an intense stigma and isolation that only serves to aggravate the “second victim syndrome” (SVS) that is well documented in the surgical literature.2 Herein,
What is Malpractice? Why Do Physicians Get Sued?
Malpractice is defined as negligence on the part of a physician which causes physical or emotional damage to the patient. This requires a variety of legal issues to be evaluated (e.g. breach of duty between the physicians and patient, breach of standard of care), that often center around the question: would a “reasonable, careful, and prudent” doctor behave in the same manner in the same circumstance?
While some fields of medicine lend themselves better to algorithmic applications of highly evidence-based guidelines, many aspects of GI care and endoscopic practice are highly physician/patient-specific, dependent on local expertise, and based on low-quality evidence. As a result, an assessment of negligence may be quite subjective, depending on the expert retained by a plaintiff. Conflicting expert testimony on what professional custom is and whether practice deviates may hinge on technical details that may or may not be appreciated by a lay jury.
Plaintiffs must prove both that they have sustained an injury and that the injury (emotional or physical) was due to the physician’s negligence. While this may be straightforward in a “slip-and-fall” tort claim, medical malpractice claims usually involve sick patients with multiple comorbidities, where assigning causality to a single intervention/misinterpretation/missed opportunity is difficult to weigh against competing causes of adverse outcomes. Assessing a specific liability requires that the plaintiff prove this to a “more likely than not” standard which may be part of the reason why only 30% of cases are closed with indemnity payments, a figure that has not changed significantly in the past decade.4
While the perception amongst physicians is that tort legislation is ever increasing, data from the National Practitioner Data Bank (NPDB) demonstrates that the number of paid claims against physicians has decreased by 75% in the last 20 years.5 This may reflect a progressive improvement in the quality of care delivered or success of “tort reform” on the state level to limit damages and “nuisance” lawsuits. However, another more problematic possibility is that with the corporatization of medicine, an untold number of physicians may be removed from litigation as a named party, with their institution shielding them from reporting. While the number of cases may or may not be declining, the average indemnity payment appears to be rising to $330,000 on average,4 with one study suggesting a significant growth in paid claims in gastroenterology.6
Historically, studies of closed malpractice claims have demonstrated that 59% involved diagnostic errors involving a cancer diagnosis,7 though why this actually happens may be for a wide variety of reasons including errors in the development of a differential diagnosis, ordering of an appropriate diagnostic test, interpretation of the diagnostic test, or follow-up of an abnormality identified.
What are the Intended/Unintended Consequences of Litigation?
The objective of our tort system is to compensate patients for economic damages (medical costs and lost wages) and non-economic damages (pain and suffering), and to ideally deter negligent behavior of providers. Interestingly, data from the NPDB have suggested that approximately 1% of all physicians account for 32% of all paid claims, with the same study showing that among physicians with paid claims, 4% had at least 3.8
While certain fields are obviously more prone to litigation, the risk of additional claims on a physician with 3 prior claims was more than 3 times that of physicians with 1 lifetime claim. One would assume that the system was built to drive out a small proportion of “bad actors.” Indeed, similar data from the NPDB has demonstrated that the number of claims against physicians was associated both with their leaving the practice of medicine and relocating to smaller practice settings.9
Another frequent question is whether the threat of litigation drives “defensive medicine” (i.e. medical care that is not beneficial) or avoidance medicine (i.e. excluding high risk patients and procedures from ones’ practice). These behaviors have been well documented in physicians around the world,10 as well as several surveys of gastroenterologists specifically suggesting regular ordering of unnecessary imaging/endoscopy and referrals of patients to specialists that may not be necessary.11,12
However, does defensive medicine work: does spending more prevent you from being the target of a lawsuit? In an observational study in Florida from 2000-2009, researchers demonstrated that across specialties, greater average spending by physicians was associated with a reduced risk of incurring a malpractice claim. Indeed, the likelihood of a top quintile spending internist having a malpractice incident vs a bottom quintile spending internist was 0.3% vs 1.5%.13
Approximately 10.4-43.3% of physicians may experience SVS, experiencing trauma after an adverse patient event/medical error, manifesting with psychological trauma (shame, guilt, anxiety) and cognitive limitations (burnout, stress).2 Significant emotional consequences are common on the part of the physician and have well-documented stages to recovery,14 which if ignored may lead to long-term detrimental mental/emotional health of the physician and their future patients.
Specifically, in one study, 80.8% of physicians who had a closed malpractice claim reported significant emotional distress (regardless of the legal outcome), with frequent reports of mood symptoms that affected professional conduct.15 Recognizing these effects and implementing peer counseling and institutional support may help to expedite recovery and mitigate future adverse career outcomes.14
Anatomy/Timeline of a Liability Lawsuit
Medical malpractice cases are heard in state courts, in the jurisdictions where the care was provided. From the time an event occurs to when a jury verdict may be rendered may take 4-5 years or more depending on the local statute of limitations, discovery process, backlog of the local case docket, and specific circumstances of the case. The length of time is important to consider given the likelihood that a physician may advance in training or move practice locations during the course of litigation. Several common myths surrounding this process are summarized in the accompanying box, titled “Myths Surrounding Medical Liability Litigation.”
The plaintiff faces a statute of limitations to file a lawsuit that may range from 1-6 years depending on the state. The first indication that legal action may be pending will generally be a plaintiff’s formal request for medical records. After these records are reviewed, the plaintiff’s attorney will consult one or more experts (often credentialed in the same specialty) to assess if the case is viable and to ultimately form the basis of an affidavit of merit from a plaintiff expert.
Once the lawsuit is filed, the physician(s) named will be assigned an attorney by their employer/insurance company. A state medical board malpractice questionnaire will generally follow that will seek to independently evaluate the alleged malpractice with interrogatives to determine if censure is warranted. There is a formal response to the plaintiff’s petition by the defense and then the discovery phase begins where both sides depose the defendants/plaintiffs and retain medical experts that are favorable to their arguments.
In choosing potential “experts,” physicians must ensure that they are willing/able to be present for a potential trial, do not have any personal/professional/academic conflicts with the defendants, and are willing to provide compelling testimony to a jury. A pre-trial conference and trial date is set which may be >12 months away depending on the local docket. While the amount of time a trial may take is variable, it may be up to 5-7 days that the defendants are expected to be in court in addition to days where depositions are being taken.
During the discovery process, dismissal of the physician from the lawsuit is pursued. In addition, settlement negotiations generally proceed in parallel with discovery process and may result in a pre-trial/pre-verdict settlement. Once a verdict is reached, whether for the plaintiff or the defendant, the case may be appealed, and the trial preparation process may be repeated.
Conclusions
Awareness of the medical liability process is critical for trainees and attendings alike, given the high likelihood of litigation in a gastroenterologist’s career. Specific considerations like local tort law and malpractice coverage are important to be familiar. Ongoing health services research help to shape our understanding on the intended and unintended consequences of litigation on medicine, though detailed data on outcomes/settlements are limited by confidentiality agreements, which may hamper efforts to improve patient safety.
Dr. Das is associate professor of medicine in the Division of Gastroenterology at Washington University School of Medicine, St. Louis, Missouri. He has served as a consultant for Olympus, but has no other relevant conflicts.
References
1. Jena AB, et al. Malpractice Risk According to Physician Specialty. N Engl J Med. 2011 Aug. doi: 10.1056/NEJMsa1012370.
2. Chong RIH, et al. Scoping review of the second victim syndrome among surgeons: Understanding the impact, responses, and support systems. Am J Surg 2024 Mar. doi: 10.1016/j.amjsurg.2023.09.045.
3. Seabury S, et al. On Average, Physicians Spend Nearly 11 Percent Of Their 40-Year Careers With An Open, Unresolved Malpractice Claim. Health Aff Proj Hope. 2013 Jan. doi: 10.1377/hlthaff.2012.0967.
4. CRICO Strategies. Medical Malpractice in America: A 10-Year Asessment with Insights. 2018. Accessed Apr 28, 2025.
5. Studdert DM, Hall MA. Medical Malpractice Law — Doctrine and Dynamics. N Engl J Med 2022 Oct. doi: 10.1056/NEJMp2201675.
6. Schaffer AC, et al. Rates and Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014. JAMA Intern Med. 2017 May. doi: 10.1001/jamainternmed.2017.0311.
7. Gandhi TK, et al. Missed and Delayed Diagnoses in the Ambulatory Setting: A Study of Closed Malpractice Claims. Ann Intern Med. 2006 Oct. doi: 10.7326/0003-4819-145-7-200610030-00006.
8. Studdert DM, et al. Prevalence and Characteristics of Physicians Prone to Malpractice Claims. N Engl J Med. 2016 Jan. doi: 10.1056/NEJMsa1506137.
9. Studdert DM, et al. Changes in Practice among Physicians with Malpractice Claims. N Engl J Med. 2019 Mar. doi: 10.1056/NEJMsa1809981.
10. Ries NM, Jansen J. Physicians’ views and experiences of defensive medicine: An international review of empirical research. Health Policy. 2021 May. doi: 10.1016/j.healthpol.2021.02.005.
11. Hiyama T, et al. Defensive medicine practices among gastroenterologists in Japan. World J Gastroenterol. 2006 Dec. doi: 10.3748/wjg.v12.i47.7671.
12. Elli L, et al. Defensive medicine practices among gastroenterologists in Lombardy: Between lawsuits and the economic crisis. Dig Liver Dis. 2013 Jun. doi: 10.1016/j.dld.2013.01.004.
13. Jena AB, et al. Physician spending and subsequent risk of malpractice claims: observational study. BMJ. 2015 Nov. doi: 10.1136/bmj.h5516.
14. Scott SD, et al. The natural history of recovery for the healthcare provider “second victim” after adverse patient events. BMJ Qual Saf. 2009 Oct. doi: 10.1136/qshc.2009.032870.
15. Gómez-Durán EL, et al. Physicians as second victims after a malpractice claim: An important issue in need of attention. J Healthc Qual Res. 2018 Oct. doi: 10.1016/j.jhqr.2018.06.002.
While nearly 75% of physicians in low-risk specialties and 99% of physicians in high-risk specialties may face a malpractice claim in their careers,1 malpractice is rarely discussed openly in medical school, residency, fellowship, or even amongst colleagues. Indeed, one study suggested that more than 10% of practicing gastroenterologists may face a malpractice claim,2 with gastroenterologists expected to spend 10-15% of their careers with an outstanding malpractice claim3 as cases may take 27-29 months to resolve on average.4
Believing that if a physician is sued, one must have done something “wrong” or that speaking about one’s experience may implicate a colleague, creates an intense stigma and isolation that only serves to aggravate the “second victim syndrome” (SVS) that is well documented in the surgical literature.2 Herein,
What is Malpractice? Why Do Physicians Get Sued?
Malpractice is defined as negligence on the part of a physician which causes physical or emotional damage to the patient. This requires a variety of legal issues to be evaluated (e.g. breach of duty between the physicians and patient, breach of standard of care), that often center around the question: would a “reasonable, careful, and prudent” doctor behave in the same manner in the same circumstance?
While some fields of medicine lend themselves better to algorithmic applications of highly evidence-based guidelines, many aspects of GI care and endoscopic practice are highly physician/patient-specific, dependent on local expertise, and based on low-quality evidence. As a result, an assessment of negligence may be quite subjective, depending on the expert retained by a plaintiff. Conflicting expert testimony on what professional custom is and whether practice deviates may hinge on technical details that may or may not be appreciated by a lay jury.
Plaintiffs must prove both that they have sustained an injury and that the injury (emotional or physical) was due to the physician’s negligence. While this may be straightforward in a “slip-and-fall” tort claim, medical malpractice claims usually involve sick patients with multiple comorbidities, where assigning causality to a single intervention/misinterpretation/missed opportunity is difficult to weigh against competing causes of adverse outcomes. Assessing a specific liability requires that the plaintiff prove this to a “more likely than not” standard which may be part of the reason why only 30% of cases are closed with indemnity payments, a figure that has not changed significantly in the past decade.4
While the perception amongst physicians is that tort legislation is ever increasing, data from the National Practitioner Data Bank (NPDB) demonstrates that the number of paid claims against physicians has decreased by 75% in the last 20 years.5 This may reflect a progressive improvement in the quality of care delivered or success of “tort reform” on the state level to limit damages and “nuisance” lawsuits. However, another more problematic possibility is that with the corporatization of medicine, an untold number of physicians may be removed from litigation as a named party, with their institution shielding them from reporting. While the number of cases may or may not be declining, the average indemnity payment appears to be rising to $330,000 on average,4 with one study suggesting a significant growth in paid claims in gastroenterology.6
Historically, studies of closed malpractice claims have demonstrated that 59% involved diagnostic errors involving a cancer diagnosis,7 though why this actually happens may be for a wide variety of reasons including errors in the development of a differential diagnosis, ordering of an appropriate diagnostic test, interpretation of the diagnostic test, or follow-up of an abnormality identified.
What are the Intended/Unintended Consequences of Litigation?
The objective of our tort system is to compensate patients for economic damages (medical costs and lost wages) and non-economic damages (pain and suffering), and to ideally deter negligent behavior of providers. Interestingly, data from the NPDB have suggested that approximately 1% of all physicians account for 32% of all paid claims, with the same study showing that among physicians with paid claims, 4% had at least 3.8
While certain fields are obviously more prone to litigation, the risk of additional claims on a physician with 3 prior claims was more than 3 times that of physicians with 1 lifetime claim. One would assume that the system was built to drive out a small proportion of “bad actors.” Indeed, similar data from the NPDB has demonstrated that the number of claims against physicians was associated both with their leaving the practice of medicine and relocating to smaller practice settings.9
Another frequent question is whether the threat of litigation drives “defensive medicine” (i.e. medical care that is not beneficial) or avoidance medicine (i.e. excluding high risk patients and procedures from ones’ practice). These behaviors have been well documented in physicians around the world,10 as well as several surveys of gastroenterologists specifically suggesting regular ordering of unnecessary imaging/endoscopy and referrals of patients to specialists that may not be necessary.11,12
However, does defensive medicine work: does spending more prevent you from being the target of a lawsuit? In an observational study in Florida from 2000-2009, researchers demonstrated that across specialties, greater average spending by physicians was associated with a reduced risk of incurring a malpractice claim. Indeed, the likelihood of a top quintile spending internist having a malpractice incident vs a bottom quintile spending internist was 0.3% vs 1.5%.13
Approximately 10.4-43.3% of physicians may experience SVS, experiencing trauma after an adverse patient event/medical error, manifesting with psychological trauma (shame, guilt, anxiety) and cognitive limitations (burnout, stress).2 Significant emotional consequences are common on the part of the physician and have well-documented stages to recovery,14 which if ignored may lead to long-term detrimental mental/emotional health of the physician and their future patients.
Specifically, in one study, 80.8% of physicians who had a closed malpractice claim reported significant emotional distress (regardless of the legal outcome), with frequent reports of mood symptoms that affected professional conduct.15 Recognizing these effects and implementing peer counseling and institutional support may help to expedite recovery and mitigate future adverse career outcomes.14
Anatomy/Timeline of a Liability Lawsuit
Medical malpractice cases are heard in state courts, in the jurisdictions where the care was provided. From the time an event occurs to when a jury verdict may be rendered may take 4-5 years or more depending on the local statute of limitations, discovery process, backlog of the local case docket, and specific circumstances of the case. The length of time is important to consider given the likelihood that a physician may advance in training or move practice locations during the course of litigation. Several common myths surrounding this process are summarized in the accompanying box, titled “Myths Surrounding Medical Liability Litigation.”
The plaintiff faces a statute of limitations to file a lawsuit that may range from 1-6 years depending on the state. The first indication that legal action may be pending will generally be a plaintiff’s formal request for medical records. After these records are reviewed, the plaintiff’s attorney will consult one or more experts (often credentialed in the same specialty) to assess if the case is viable and to ultimately form the basis of an affidavit of merit from a plaintiff expert.
Once the lawsuit is filed, the physician(s) named will be assigned an attorney by their employer/insurance company. A state medical board malpractice questionnaire will generally follow that will seek to independently evaluate the alleged malpractice with interrogatives to determine if censure is warranted. There is a formal response to the plaintiff’s petition by the defense and then the discovery phase begins where both sides depose the defendants/plaintiffs and retain medical experts that are favorable to their arguments.
In choosing potential “experts,” physicians must ensure that they are willing/able to be present for a potential trial, do not have any personal/professional/academic conflicts with the defendants, and are willing to provide compelling testimony to a jury. A pre-trial conference and trial date is set which may be >12 months away depending on the local docket. While the amount of time a trial may take is variable, it may be up to 5-7 days that the defendants are expected to be in court in addition to days where depositions are being taken.
During the discovery process, dismissal of the physician from the lawsuit is pursued. In addition, settlement negotiations generally proceed in parallel with discovery process and may result in a pre-trial/pre-verdict settlement. Once a verdict is reached, whether for the plaintiff or the defendant, the case may be appealed, and the trial preparation process may be repeated.
Conclusions
Awareness of the medical liability process is critical for trainees and attendings alike, given the high likelihood of litigation in a gastroenterologist’s career. Specific considerations like local tort law and malpractice coverage are important to be familiar. Ongoing health services research help to shape our understanding on the intended and unintended consequences of litigation on medicine, though detailed data on outcomes/settlements are limited by confidentiality agreements, which may hamper efforts to improve patient safety.
Dr. Das is associate professor of medicine in the Division of Gastroenterology at Washington University School of Medicine, St. Louis, Missouri. He has served as a consultant for Olympus, but has no other relevant conflicts.
References
1. Jena AB, et al. Malpractice Risk According to Physician Specialty. N Engl J Med. 2011 Aug. doi: 10.1056/NEJMsa1012370.
2. Chong RIH, et al. Scoping review of the second victim syndrome among surgeons: Understanding the impact, responses, and support systems. Am J Surg 2024 Mar. doi: 10.1016/j.amjsurg.2023.09.045.
3. Seabury S, et al. On Average, Physicians Spend Nearly 11 Percent Of Their 40-Year Careers With An Open, Unresolved Malpractice Claim. Health Aff Proj Hope. 2013 Jan. doi: 10.1377/hlthaff.2012.0967.
4. CRICO Strategies. Medical Malpractice in America: A 10-Year Asessment with Insights. 2018. Accessed Apr 28, 2025.
5. Studdert DM, Hall MA. Medical Malpractice Law — Doctrine and Dynamics. N Engl J Med 2022 Oct. doi: 10.1056/NEJMp2201675.
6. Schaffer AC, et al. Rates and Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014. JAMA Intern Med. 2017 May. doi: 10.1001/jamainternmed.2017.0311.
7. Gandhi TK, et al. Missed and Delayed Diagnoses in the Ambulatory Setting: A Study of Closed Malpractice Claims. Ann Intern Med. 2006 Oct. doi: 10.7326/0003-4819-145-7-200610030-00006.
8. Studdert DM, et al. Prevalence and Characteristics of Physicians Prone to Malpractice Claims. N Engl J Med. 2016 Jan. doi: 10.1056/NEJMsa1506137.
9. Studdert DM, et al. Changes in Practice among Physicians with Malpractice Claims. N Engl J Med. 2019 Mar. doi: 10.1056/NEJMsa1809981.
10. Ries NM, Jansen J. Physicians’ views and experiences of defensive medicine: An international review of empirical research. Health Policy. 2021 May. doi: 10.1016/j.healthpol.2021.02.005.
11. Hiyama T, et al. Defensive medicine practices among gastroenterologists in Japan. World J Gastroenterol. 2006 Dec. doi: 10.3748/wjg.v12.i47.7671.
12. Elli L, et al. Defensive medicine practices among gastroenterologists in Lombardy: Between lawsuits and the economic crisis. Dig Liver Dis. 2013 Jun. doi: 10.1016/j.dld.2013.01.004.
13. Jena AB, et al. Physician spending and subsequent risk of malpractice claims: observational study. BMJ. 2015 Nov. doi: 10.1136/bmj.h5516.
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