Do EM residents worry about lawsuits too much?

Safety, not lawsuits, should be priority

When a group of physicians starting emergency medicine residencies in California were surveyed, researchers found that malpractice fear markedly decreased the interns' enjoyment of medicine.1

"We were trying to gauge how much concern they had about malpractice, and how it affected their decision making," says Robert M. Rodriguez, MD, the study's lead author and research director for the department of emergency services at San Francisco General Hospital.

The interns had at least a moderate concern about malpractice at the beginning of their residency. "This concern highly affected their satisfaction and enjoyment of practicing emergency medicine," says Rodriguez. "It was something that really detracted from their experience."

By the end of the residency, their level of concern had not changed significantly, but the effect on their enjoyment seemed to decrease. "It did not affect either interns or the graduates' decision to perform procedures. But it certainly is something that is on their minds," says Rodriguez.

The researchers expected that the residents would have at least a moderate concern about being sued, but they were surprised that this did not increase over time, says Rodriguez. "We are all faculty at academic centers and we often discuss issues related to malpractice," he says. "It is a big concern for everybody."

Discourage defensive medicine

In general, malpractice concern is a negative thing, because it results in the practice of defensive medicine, according to Rodriguez. "It leads to ordering more tests just for the sake of making sure you don't get sued, which increases health care costs," he says. "The increased expenditure does not appear to lead to better patient outcomes."

Since the study showed that interns already had worries about lawsuits at the onset of their training, this leads to the question: Where do they get those concerns from? "The answer to that has to be at least partially during medical school," says Rodriguez. "And during residency itself, there may be things that we can do to alleviate some of this fear, to prevent defensive medicine from having an even greater effect."

However, other emergency physicians argue that a certain amount of concern about malpractice lawsuits is not necessarily bad. "As someone who has been a medical director for most of his career, I prefer emergency physicians with a healthy fear of getting sued," says Tom Scaletta, MD, FAAEM, chair of the ED at Edward Hospital in Naperville, IL and current president of the Milwaukee, WI-based American Academy of Emergency Medicine. "This helps assure careful practice and meticulous documentation."

Ideally, all emergency medicine training programs would include didactic education and simulation testing focused on improving the physician's bedside manner, says Scaletta. "Excessively defensive medicine, however, is unhealthy and can put the patient though unnecessary and sometimes invasive tests, inflate the cost of healthcare, and slow throughput so that sick patients spend too long in the waiting room," he says.

In residency, the focus is clinical knowledge since there is so much to learn, notes Scaletta. "Many emergency docs learn customer service techniques during their first job—often the hard way, by being reprimanded," he says. "It is felt that some lawsuits are prevented by caring relationships and others are provoked by uncaring relationships."

According to Carey D. Chisholm, MD, director of the emergency medicine residency program and clinical professor of emergency medicine at Indiana University School of Medicine in Indianapolis, the amount of concern residents have is predominantly influenced by their attending physician and the faculty they work with.

"If those individuals are generally risk adverse, the resident will be more inclined to practice overly defensive medicine," says Chisholm. He points to the fact that the number one successful malpractice lawsuit that comes out of the ED is failure to diagnose.

"Obviously, to be named in a malpractice suit is rather devastating to any physician, particularly if you are successfully sued," says Chisholm. "The longer you can put off having that happen, the better."

Focus on safety, not lawsuits

Part of the problem is that fear of disclosure tends to make people cover up errors and near misses, says Chisholm. "Unfortunately, there is no reward for pointing that out. No one wants to stand out by looking incompetent or negligent," he says. "Add to that the potential for creating a malpractice suit, and I think it puts a huge braking effect on addressing systems issues that contribute to medical errors."

A recent study showed that while only 18% of physicians received education on how to disclose errors, 86% wanted this training.1 "We are specifically going to integrate that into our curriculum this year," says Chisholm.

The legal system holds an individual accountable, but it's the system that allowed the error to be made that must be addressed, says Chisholm. "'As long as the legal system is going to hold the individual accountable as the point person and culprit, we will never have a system that is forthcoming in reporting near misses," he says.

A recent two-hour grand rounds program at Indiana University focused specifically on medical errors in the ED. "The goal wasn't to avoid lawsuits. It was to practice safe medicine for our patients," Chisholm says. "From the feedback we've gotten, the idea of looking at the system instead of the individual is something that most residents haven't been exposed to in medical school. This is a new concept for them."

As a result of this realization, Chisholm challenged both residents and faculty to identify a system issue in the ED that promotes error over the coming year.

Practicing legally safe medicine is a very different thing than practicing good medicine, says Chisholm. "Legally safe medicine," taken to the extreme, leads to ED physicians ordering tests that are potentially harmful to patients, he says. "A classic example is repeat abdominal [computerized tomography] scans with intravenous contrast, which has potential adverse effect on kidneys as well as the risk of radiation over time."

Physicians perform these tests because the legal system holds them to a zero percent error rate, says Chisholm. "It doesn't matter if there is a pretest probability of 1 in a 1000 of finding the condition. They don't want to accept that risk," he says.

There is a misconception that more diagnostic tests equals better care, but in fact, needless testing can actually harm patients, and both residents and patients should be made aware of this, stresses Chisholm. "There is a cost to the individual to have unnecessary tests. For one thing, there are false positives that can result in a cascade of ongoing tests when the disease condition isn't really there."

Instead of practicing defensive medicine, residents should be learning good communication skills which decrease the likelihood that a patient will become angry, says Chisholm. "Those techniques serve you well, because angry patients are more likely to sue," he says.


1. Waterman AD, Garbutt J, Hazel E, et al. The emotional impact of medical errors on practicing physicians in the United States and Canada. Joint Commission Journal on Quality and Patient Safety 2007; 33(8):467-476.


For more information, contact:

  • Carey D. Chisholm, MD, Professor of Emergency Medicine, Emergency Medicine and Trauma Center, Methodist Hospital, I-65 at 21st Street, P.O. Box 1367, Indianapolis, IN 46202-1367. Phone: (317) 962-5975. E-mail:
  • Robert M. Rodriguez, MD, Research Director, Department of Emergency Services, San Francisco General Hospital, 1001 Potrero Avenue, Suite 1E21, San Francisco, CA 94110. Phone: (415) 206-5875. E-mail:
  • Tom Scaletta, MD, FAAEM, Chair, Emergency Department, Edward Hospital, 801 S. Washington, Naperville, IL 60540. Phone: (630) 527-5025. E-mail: