Physicians are the primary target of malpractice. According to records of malpractice payments in 2021, 89.8% of payments were made in claims against physicians and dentists; professional nurses accounted for 3.3%, and all other healthcare practitioners constituted 6.9% [12]. In total, 34% of physicians have been sued, with 16.8% having been sued more than twice [13]. Lower quality of care does not appear to be the cause of most malpractice claims, as no significant differences have been found in quality between physicians who have and have not been sued [14].

The risk of malpractice varies among medical specialties and typically increases with the frequency with which procedures are performed and with a greater potential for catastrophic injury [5,18]. The rates of malpractice claims against family medicine and internal medicine physicians have historically been low, but the rates have increased since the late 1990s [19]. According to paid claims between 1992 and 2014, family medicine and internal medicine were the specialties with the second and third leading number of claims (behind obstetrics/gynecology), with 18,349 and 17,174 paid claims, respectively (Table 1) [5]. It has been estimated that the typical family physician can expect to be sued about once every 7 to 10 years [20]. One study noted that by 65 years of age, 75% of physicians in low-risk specialties faced a malpractice claim, compared with 99% of physicians in high-risk specialties. It should be noted, however, that more than 75% of these malpractice claims do not result in indemnity payment [21]. In an analysis of overall paid malpractice claims between 1992 and 2014, it was found that the rate of paid claims decreased by 55.7%; however, the mean payment amount increased by 23.3% (Table 1) [5].

For physicians in low-risk specialties (e.g., pediatrics, psychiatry), there is a substantial gap between physicians' perceived risk of malpractice and their actual risk, with physicians perceiving a much greater risk of malpractice than has been documented for their specialty [15,16]. For example, in a survey regarding malpractice concerns, 62.5% of pediatric physicians agreed or strongly agreed that they were at risk, compared with American Medical Association (AMA) data that indicated 17.8% of pediatric physicians had ever been sued [13,17]. Similarly, radiologists have estimated their risk of litigation within five years as 35%, which compares with an actual rate of approximately 10% [15]. By contrast, using the same datasets, physicians in high-risk specialties (i.e., obstetrics/gynecology and surgery) had a much closer concern/reality gap, with concern data showing 81% for obstetricians/gynecologists and 75.3% for surgical specialists, compared with a lifetime malpractice claim rate of 63.6% and 63.2%, respectively [13,17].

The risk of malpractice varies among medical specialties and typically increases with the frequency with which procedures are performed and with a greater potential for catastrophic injury [5,18]. The rates of malpractice claims against family medicine and internal medicine physicians have historically been low, but the rates have increased since the late 1990s [19]. According to paid claims between 1992 and 2014, family medicine and internal medicine were the specialties with the second and third leading number of claims (behind obstetrics/gynecology), with 18,349 and 17,174 paid claims, respectively (Table 1) [5]. It has been estimated that the typical family physician can expect to be sued about once every 7 to 10 years [20]. One study noted that by 65 years of age, 75% of physicians in low-risk specialties faced a malpractice claim, compared with 99% of physicians in high-risk specialties. It should be noted, however, that more than 75% of these malpractice claims do not result in indemnity payment [21]. In an analysis of overall paid malpractice claims between 1992 and 2014, it was found that the rate of paid claims decreased by 55.7%; however, the mean payment amount increased by 23.3% (Table 1) [5].

Overall rates of medical malpractice claims declined between 2010 and 2020. The same trend occurred in the number of paid malpractice claims and the average compensation (Figure 1 and Figure 2) [12]. In 2020, 9,401 malpractice claims were paid in the United States, with the compensation totaling more than $3.4 billion [12]. It has been argued that malpractice claims represent a substantial factor in rising healthcare costs. However, estimates for 2010 demonstrate that the total costs related to malpractice claims (compensation plus administrative costs) represented only 0.23% (range: 0.13% to 0.33%) of the $2.8 trillion (range: $2.6 trillion to $3 trillion) spent on health care in the United States that year [22,23].

The average compensation varies widely according to geography, type of injury, and physician specialty. In 2021, the average compensation ranged from $202,552 (North Dakota) to $318,213 (New York) [12]. Total compensation also varies considerably. In 2021, compensations in New York State accounted for 17% of all payments that year in the United States, and the top six states (New York, Pennsylvania, New Jersey, Illinois, Florida, and California) accounted for more than half of all 2021 compensation payments [12]. Claims payments are typically lowest for "insignificant injury" (average of $35,500 in 2019) and highest for quadriplegia, brain damage, or lifelong care (average of $1,094,848 in 2019) [24]. Of 24 specialties, general and family medicine ranks 18th in mean compensation (approximately $290,698) and internal medicine ranks 14th (approximately $318,071) [5].

In a medical malpractice case, the plaintiff has the burden of establishing the appropriate standard of care and demonstrating that the standard of care has been breached. The standard of care is primarily defined by other practitioners with similar qualifications, who provide expert testimony about how they would have managed an individual's care under the same or similar circumstances [36]. In general, expert testimony is based on the physician expert's knowledge, skill, experience, and training and may be supplemented by published literature, practice guidelines, and surveys of practitioners [36]. The focus is whether the physician's actions met or breached the standard of care and, if the latter, whether the plaintiff was harmed as a result of the breach [36].

The primary goal of informed consent is to protect patients by requiring that physicians provide a balanced discussion of a proposed procedure/treatment as well as of the alternative options, so patients can make informed medical decisions [37]. Informed consent was once required only for invasive procedures but the scope of procedures has expanded to include complex treatments (e.g., radiation therapy, chemotherapy), and a separate written consent is required for the use of anesthesia (general, spinal/epidural, or regional) in some states [6,41,42].

The informed consent discussion should focus on the expected benefits, the risks involved with the procedure/treatment, and the feasible alternatives [6,41]. The adequacy of the disclosure of risks is defined differently among states. In most states, a "professional standard" is applied, which means that adequate disclosure is defined as what a reasonable medical practitioner would disclose in a similar situation; in other states, a "lay standard" is applied, with adequate disclosure defined as what a reasonably prudent individual would want to know before consenting to the particular procedure/treatment [6]. In general, physicians must disclose all severe risks, such as death, paralysis, or loss of an extremity, regardless of the likelihood of the event. Less severe events should be disclosed if they are frequent, whereas nominal risks do not need to be disclosed if they are not frequent [37,41].

Charitable immunity laws are designed to protect physicians and other healthcare professionals who volunteer their services in free health clinics and other community initiatives to provide health care to uninsured individuals. These laws also differ from state to state, but they act to either raise the negligence standard of care (from simple negligence to gross negligence) or indemnify volunteer healthcare professionals with liability protection as if they were government employees [45]. Some state laws have elements of both approaches.

Diagnostic error (misdiagnosis or missed or delayed diagnosis) is the most common allegation in malpractice claims, noted in 22% to 78% of all claims [2,3,5,16,54,55]. In a study of 307 claims alleging diagnostic error in the ambulatory setting, researchers found that 59% of the claims involved a diagnostic error that harmed the patient [56]. Among the errors that caused harm, 59% caused serious harm and 30% caused death [56]. Another study analyzing paid claims noted that there was a substantial difference in paid claims for diagnostic errors among specialties. The percentage of paid claims for which diagnostic error was alleged was highest among pathology (87%) and radiology (83.9%), and lowest among anesthesiology (3.5%) and plastic surgery (4.3%) [5].

One study in the primary care setting noted that diagnostic process breakdown most frequently occurred during the patient-practitioner clinical encounter (78.9%), which includes errors in history-taking (56.3%), examination (47.4%), and/or ordering diagnostic tests for further work-up (57.4%). Other areas of process breakdown included referrals (19.5%), patient-related factors (16.3%), follow-up and tracking of diagnostic information (14.7%), and performance and interpretation of diagnostic tests (13.6%). A total of 43.7% of cases involved more than one of these processes [62].

The leading diagnoses-related allegations have varied somewhat across studies. One analysis of internal medicine malpractice found that 79% of allegations were failure to diagnose, with the remainder due to delay in diagnosis [67]. Of the failures to diagnose, 29% were cardiovascular disorders, 26% were infections, 18% were neoplasms, 10% were neurologic disorders, and 9% were gastrointestinal disorders [67]. Of the diagnostic delays, 40% were neoplasms, 18% were infections, 16% were gastrointestinal disorders, 16% were neurologic disorders, and 2% were cardiovascular disorders. In another study of claims settled between 1985 and 2000, acute myocardial infarction was the leading diagnosis (5%), followed by lung, breast, and colon cancer (each accounted for 3% of claims) and appendicitis (2%) [3]. Another study of missed diagnoses in the primary care setting found that more than 35% of missed diagnoses were conditions common in primary care, including pneumonia (6.7%), decompensated congestive heart failure (5.7%), acute renal failure (5.3%), cancer (primary) (5.3%), and urinary tract infection or pyelonephritis (4.8%) [62]. Diagnostic errors are also a predominant source of emergency department allegations (37%) [68]. A 2010 study identified the most common conditions associated with emergency department claims, with fractures (6%), acute myocardial infarction (5%), and appendicitis (2%) topping the list [68].

Given that a high number of malpractice claims do not involve a medical injury, other factors must motivate patients and families to sue [18,69]. Patient motivations for malpractice have been extensively studied, and a wide variety of motivations have been identified (Table 2) [18,57,69,70]. In general, these motivations are not related to financial need but rather to problems with patient-physician communication or the patient-physician relationship and unmet expectations of the patient [69]. The overwhelming majority of patients and families say they just want information about what happened, and many wish to prevent the situation from happening again [18,69,71].

All of these studies and surveys have shown that assurance behaviors are more common than avoidance behaviors, with the most frequent practice being the excessive ordering of tests, especially imaging studies [17,74,75]. For example, in the survey of physicians in high-risk specialties, 92% of respondents reported ordering more tests, performing more diagnostic procedures, and referring more patients for consultation [75]. Approximately 42% of the respondents said they had recently limited their practice to eliminate procedures with a high risk of complications or had avoided patients with complex medical problems or who were perceived as litigious [75]. A 2015 study that included more than 24,000 physicians, evaluated data from acute care hospital admissions in Florida from 2000 to 2009 [79]. Across specialties, greater average spending by physicians was associated with reduced risk of incurring a malpractice claim. For example, among internists, the probability of an alleged malpractice incident ranged from 1.5% with spending at $19,725 to 0.3% with spending at $39,379. In six of the specialties evaluated, a greater use of resources was associated with a statistically significantly lower subsequent rate of alleged malpractice incidents [79].

A malpractice claim has a profound impact on a physician in terms of time, psychologic effects, and reputation. The average length of time between the date of an incident and closure of the claim is approximately four to five years [1,2,4,70]. During this time, the physician is distracted with the malpractice defense and the legal process robs time from personal and professional activities.

Malpractice litigation has a negative psychologic effect on a physician because of its threat to personal integrity and honor. In general, physicians share personality traits that render them particularly vulnerable to malpractice litigation in which fault must be established [81]. These traits include self-criticism, exaggerated sense of responsibility, and vulnerability to guilt [82]. Physicians may experience loss of self-esteem and engage in self-questioning (e.g., "What did I do wrong?" or "What could I have done better?") [70,83]. In addition, the adversarial nature of litigation contradicts the normal work environment of a physician. As a result, approximately 80% to 95% of physicians have reported emotional distress during the process of malpractice litigation [84,85]. This distress affects not only the physician but also his or her family and office staff [70]. A physician's reaction to a malpractice claim has been described as beginning with a sense of shock, outrage, or dread, followed by feelings of intense anger, frustration, isolation, and inner tension [81]. In a study of physicians with a malpractice claim, 54% indicated that they were very surprised by the claim, 32% were somewhat surprised, and 14% were not surprised [4]. In cases in which there is clearly a negative outcome, the physician may also feel a substantial amount of guilt. Among the most common reactions to malpractice are [85,86]:

Health literacy, the ability to understand health information and make informed health decisions, is integral to good health outcomes [96]. Yet, the National Assessment of Adult Literacy estimated that only 12% of adults have "proficient" health literacy and 14% have "below basic" health literacy [97]. Rates of health literacy are especially low among ethnic minority populations and individuals older than 60 years of age [96]. Compounding the issue of health literacy is the high rate of individuals with limited English proficiency. According to U.S. Census Bureau data from 2019, more than 65.9 million Americans speak a language other than English at home, with approximately 25.6 million of them (8.4% of the population) speaking English less than "very well" [98].

Physicians should assess their patients' literacy level and understanding and implement interventions as appropriate. It has been suggested that when patients are first evaluated, they should be asked what language is spoken at home and if they speak English "very well" (if the healthcare professional is English-speaking) [99]. In addition, physicians should ask what language patients prefer for their medical care information, as some prefer their native language even though they have said they can understand and discuss symptoms in English [99].

Physicians should use plain language in their discussions with patients who have low literacy or limited English proficiency. They should ask them to repeat pertinent information in their own words to confirm understanding [100]. Reinforcement with the use of low-literacy or translated written educational materials is helpful.

"Ad hoc" interpreters, such as family members, friends, and bilingual staff members, are often used instead of professional interpreters for a variety of reasons, including convenience and cost. Physicians should check with their state's health officials about the use of ad hoc interpreters, as several states have laws about who can interpret medical information for a patient [101]. Even when allowed by law, the use of a patient's family member or friend as an interpreter should be avoided, as the patient may not be as forthcoming with information and the family member or friend may not remain objective [101]. Children should especially be avoided as interpreters, as their understanding of medical language is limited and they may filter information to protect their parents or other adult family members [101]. Individuals with limited English language skills have actually indicated a preference for professional interpreters rather than family members [102].

Patients are satisfied when they feel as if they receive sufficient attention from healthcare professionals. Patients of physicians with prior malpractice claims have reported feeling rushed and ignored, being given explanations and advice that were inadequate, and having shorter office visit times than patients of physicians with no malpractice history [108]. A study of primary care physicians and their patients showed that physicians with no history of malpractice differed significantly from those with previous claims in terms of the use of facilitation statements, the amount of information given to orient the patient to the office visit, and the use of humor [107]. In addition, the length of a routine office visit was a significant predictor of a malpractice claim [107].

In a study to assess the levels of knowledge of patients, more than 80% of patients were satisfied with an informed consent discussion about pending surgery and considered themselves to be fully informed, but more than half could not list a single potential complication related to the surgery [130]. A patient's dissatisfaction with an informed consent discussion is most likely to surface only if an adverse event occurs after the treatment was given. Because of the gap between what is told and what is remembered, a patient may think that an adverse event is the result of inadequate informed consent or negligent care [131].

Given the challenge of knowing whether a patient has understood the informed consent discussion, physicians should take several efforts to enhance understanding. Asking the patient to read a section of the informed consent form aloud enables the physician to assess the patient's literacy level [42]. Physicians should plan sufficient time to speak with the patient and should present information in easy-to-understand language. Patients should be encouraged to ask questions and to take an active role in decision making [131]. Lastly, the patient should be asked to describe a section or sections of the form in his or her own words to demonstrate the level of understanding. Physicians should have consent forms translated into languages spoken by any large percentage of their patient population [42].

Informational resources in a variety of media may be helpful as a supplement to the discussion. These resources help emphasize realistic expectations and address different learning preferences; as such, they have been shown to enhance understanding, especially for patients with low educational levels [70,132,133]. A systematic review of 55 trials on decision aids indicated that they increase patients' involvement and are more likely to lead to informed values-based decisions, but the size of this effect has varied across studies [134]. An updated review that included 105 trials indicated that decision aids are more likely to lead to improved patient knowledge and improved perception of the risks involved [135].

If time allows, it is reasonable to let patients consider a decision made after signing an informed consent form [37]. Giving a patient 24 to 48 hours to think about the risks and benefits can reinforce the validity of the informed consent [37]. If a patient withdraws consent, it should be documented in the medical record, with the date and time of withdrawal.

Documenting the informed consent discussion in the patient's record and including the signed informed consent form in the record decreases the probability of a successful malpractice case against the physician [37]. A signed informed consent form is not automatic protection; patients can argue that the risks were discussed by a healthcare professional other than the physician who performed the treatment or that they did not understand the risks.

Despite the importance of complete medical records, surveys of office practices have shown that documentation is frequently incomplete or poor, with the most often lacking elements being [136]:

Management of patients' medications is a frequent problem in medical office practice and a common basis for malpractice claims [63,64,136]. As noted earlier, a substantial proportion of medication errors and adverse drug events are considered to be preventable [63,64].

In the office and outpatient setting, preventable medication errors occur primarily in the prescribing and monitoring stages [64,155,156]. Prescribing errors were identified in up to 11% of prescriptions written in the primary care setting and were typically related to dosage errors [57,157]. Prescribing errors have also frequently involved the use of inappropriate drugs [64,156]. Inadequate monitoring has caused a wide variety of adverse effects, such as electrolyte/renal imbalance, bleeding, gastrointestinal toxicity, and neuropsychiatric events, and often requires hospitalization of the patient [64,155]. Other common medication-related errors are a failure to prescribe prophylactic agents when appropriate (as for patients taking nonsteroidal anti-inflammatory agents or anticoagulants) and drug-drug interactions [57,155].

When terminating a patient-physician relationship, the physician should send a letter to the patient, notifying him or her that the relationship will be terminated by a specific date, typically 30 days from the date of the letter [159]. The letter should be sent by certified mail with a return receipt requested to ensure appropriate delivery. A copy of the letter and the return receipt should be kept in the patient's medical record. Physicians should not refill a patient's prescription beyond the date of termination [9,159]. Physicians are not obligated to help patients find another physician, but assisting with the transfer of medical records demonstrates an interest in facilitating continuity of care, which may be helpful in the event of litigation [159].

Most state and federal laws regarding mandatory retention times for medical records apply to hospitals rather than office-based practices. In the absence of state or federal laws, state medical boards and medical associations have recommended retention times [160]. It is recommended to retain medical records indefinitely, but if not, they should be kept for at least 10 years, and some associations recommend 25 years [160]. Medical records should be destroyed appropriately, and an inventory of all destroyed records should be kept.