Traditionally, physicians have been reluctant to share their personal experience with malpractice litigation due to fear of repercussions in the community and loss of professional reputation. Estimates regarding the frequency of malpractice claims against emergency physicians have been sorely lacking.

Nonetheless, EPs have long felt that we might be disproportionately sued because of the unselected nature of our patients, our frequent inability to establish rapport (with patients or families) given the limited time frame of our interactions with patients and the acuteness of their illness or injury, and the fact that so many factors not under our control may affect the attitudes, and unfortunately even the clinical outcomes, of our patients.

An AMA survey of physicians from 42 specialties found that 42% had been sued for malpractice at some time in their careers, with an average of 95 claims for every 100 physicians surveyed. Emergency physicians ranked fifth in claims frequency overall, with 109 claims per 100 physicians. Nearly half the EPs reported experiencing at least one claim, and 30.9% had been sued several times. In the year covered by the survey (2007-8), 8.7% of the EPs surveyed had been sued, compared with 5% from all specialties.

More than 75% of EPs older than 55 had experienced claims (compared with 61% from all specialties). However, the number of EPs responding to the survey was small.

A subsequent study using data from Physician Insurers Association of America (whose members insure 60% of physicians nationwide) looked at aggregate outcomes for emergency medicine malpractice claims from 1985-2007.

The study revealed that 64% of claims were closed without payment, 29% closed via settlement, and only 7% were tried to verdict, with 85% adjudicated in favor of the physician. This study included cases generated from emergency departments but involved only adult patients and did not separate out those cases actually brought against emergency physicians (19% of cases).

The ACEP Medical Legal Committee’s all-member survey conducted in 2010 , which was a voluntary survey of self-reported experience, suggested that the majority of emergency physician members had been named in a claim for malpractice at least once. Almost 10% of survey respondents had been named five or more times. Of cases litigated, the survey suggested over 85% of cases resulted in a defense verdict. However, 40% of respondents reported that some payment was made on their behalf in one or more claims.

Lately, however, we have received some relatively good news from a well-conducted study that did not rely on self-reporting. Last year, a large and long term study of closed claims involving all specialties covered by a nationwide malpractice insurer revealed that emergency physicians received just over the average number of claims for all specialties at 7.6 vs. 7.4% per year and was just under the average for all specialties in the percentage of physicians making payouts on claims at 1.4 vs. 1.6% per year. Emergency medicine was the 15th-most sued specialty out of 25, but the 19th out of 25 in terms of actual payout indemnity. Average payment was approximately $175,000.