Why Are Doctors Such a Target for Litigation?
When a medical malpractice attorney meets with a potential client for the first time, the attorney understands that before she agrees to take the case, it has to have three components: liability, damages, and collectibility.
Not all attorneys are created equal. Some cannot accurately assess the strength of liability in a case—whether there is a legal basis for bringing a lawsuit (like whether a misdiagnosis constitutes medical error in a certain case or a known risk). Other attorneys cannot accurately estimate the value of the damages of a case (the extent to which the potential client experienced loss). But all attorneys understand collectibility. That is the lifeline of their practice—no matter how good a case is, if there is no pot of gold at the end of the rainbow, the attorney is not going to take the case.
And that is reason number 1 that doctors are targeted: they are almost always going to have insurance, which is the easiest way to collect. And even if a doctor does not have insurance, or if there is a judgment or verdict in excess of the insurance coverage, doctors are perceived to have deep pockets. And although it is more work for the attorney, she is happy to go garnish bank accounts, foreclose on the mountain cabin, and seize the houseboat or snowmobiles.
There are protections against both of these eventualities, of course. A malpractice settlement ordinarily comes with strings attached (or really, more like rope). But with some careful planning, those consequences can usually be avoided.
How about reason number 2 that doctors are targeted? It is the unfortunate consequence of the risks associated with the practice of medicine. When a restaurant makes a mistake, they can usually fix it by bringing a new plate or reducing the bill. When a painter makes a mistake, he can just apply new paint to cover the mistake. But when a doctor makes a mistake, the stakes are much higher. People can become permanently disabled. They can die. And because the stakes are much higher, people are more likely to seek to hold doctors accountable.
This is compounded by the fact that the same negative consequences—pain, failed procedure, rejected organ, disability, death, etc.—can occur when the doctor does everything right. As a result, you have a recipe for a high rate of litigation.
As for reason number 3 doctors are frequently the target of litigation, this requires a little knowledge of the law.
There are two types of liability: direct and vicarious.
We are directly liable when our actions (or in some cases, inactions) cause harm to another human being. This is true with intentional harm, like in cases of an attack (the tort of battery) or theft (the tort of conversation). In most cases, however, we’re talking negligence, which is the legal doctrine that allows people to hold others accountable for unintentional acts or mistakes. Like when one driver rear-ends another or when a pharmacist hands out the wrong prescription.
When it comes to medical malpractice, a plaintiff is going to go after the person who did them wrong. The doctor who misdiagnosed them, the nurse who made an incorrect notation on the chart, or the dentist who pulled the wrong tooth.
That’s direct liability, and it makes good sense.
But there is also something called vicarious liability, which is a legal doctrine allowing plaintiffs to hold one person responsible for the mistakes of another based on the relationship between the two persons.
In the medical field, that means that the doctor can lose a lawsuit even when they do nothing wrong if one of the members of the team they oversee has made a mistake.
There are a lot of professionals working under doctors for whom the doctors are responsible:
58,000 medical transcriptionists
118,000 physician’s assistants
240,000 nurse practitioners
406,000 medical/health services managers
729,000 practical and vocational nurses
1,564,00 nursing assistants and orderlies
3,059,800 registered nurses
If the doctor makes a mistake, the doctor gets sued. If the nurse makes a mistake, the nurse and the doctor get sued. If the medical transcriptionist makes a mistake, it is probably only the doctor who gets sued. No matter who makes a mistake, the doctor in charge gets sued.
And that’s the law. Because the doctor is in charge, the law holds them accountable regardless of whether they actually did anything wrong.
That partially explains why almost no doctor goes their entire career without getting sued. So doctors need to take extra steps to protect their assets against potential litigants and their reputations against the dangers of getting reported to the NPDB when a medical malpractice case is settled.