Disclaimer: This article is for educational purposes only. All examples are hypothetical and aim to illustrate common clinical scenarios and challenges gastroenterologists may encounter within their scope of practice. The content herein should not be interpreted as legal advice for individual cases nor a substitute for seeking the advice of an attorney.
There are unique potential stressors faced by the gastroenterologist at each career stage, some more so early on. One such stressor, and one particularly important in a procedure-intensive specialty like GI, is medical professional liability (MPL), historically termed “medical malpractice.” Between 2009 and 2018, GI was the second-highest internal medicine subspecialty in both MPL claims made and claims paid,1 yet instruction on MPL risk and mitigation is scarce in fellowship, as is the available GI-related literature on the topic. This scarcity may generate untoward stress and unnecessarily expose gastroenterologists to avoidable MPL pitfalls. Therefore, it is vital for GI trainees, early-career gastroenterologists, and even seasoned gastroenterologists to have a working and updated knowledge of the general principles of MPL and GI-specific considerations. Such understanding can help preserve physician well-being, increase professional satisfaction, strengthen the doctor-patient relationship, and improve health care outcomes.2
Dr. John Azizian
To this end, we herein provide a focused review of the following: key MPL concepts, trends in MPL claims, GI-related MPL risk scenarios and considerations, adverse provider defensive mechanisms, documentation tenets, challenges posed by telemedicine, and the concept of “vicarious liability.”
Key MPL concepts
MPL falls under the umbrella of tort law, which itself falls under the umbrella of civil law; that is, civil (as opposed to criminal) justice governs torts – including but not limited to MPL claims – as well as other areas of law concerning noncriminal injury.3 A “tort” is a “civil wrong that unfairly causes another to experience loss or harm resulting in legal liability.”3 MPL claims assert the tort of negligence (similar to the concept of “incompetence”) and endeavor to compensate the harmed patient/individual while simultaneously dissuading suboptimal medical care by the provider in the future.4,5 A successful MPL claim must prove four overlapping elements: that the tortfeasor (here, the gastroenterologist) owed a duty of care to the injured party and breached that duty, which caused damages.6 Given that MPL cases exist within tort law rather than criminal law, the burden of proof for these cases is not “beyond a reasonable doubt”; instead, it’s “to a reasonable medical probability.”7
Trends in MPL claims
Dr. Camellia Dalai
According to data compiled by the MPL Association, 278,220 MPL claims were made in the United States from 1985 to 2012.3,8-10 Among these, 1.8% involved gastroenterologists, which puts it at 17th place out of the 20 specialties surveyed.9 While the number of paid claims over this time frame decreased in GI by 34.6% (from 18.5 to 12.1 cases per 1,000 physician-years), there was a concurrent 23.3% increase in average claim compensation; essentially, there were fewer paid GI-related claims but there were higher payouts per paid claim.11,12 From 2009 to 2018, average legal defense costs for paid GI-related claims were $97,392, and average paid amount was $330,876.1
