Medical malpractice claims offer patients who have experienced harm as the result of negligence by physicians, hospitals and other health care providers the opportunity to obtain financial compensation. Negligence in malpractice cases is defined as the failure to conform to an accepted standard of care, i.e., in one common formulation, to fail to behave as a reasonable physician would in a similar circumstance1.

In the US and many other countries, allegations of malpractice are litigated in civil courts, with patient-plaintiffs carrying the burden of proving that their caregivers acted in a negligent fashion. Recent years have seen growing interest in identifying alternatives to this expensive, stress-inducing, and time-consuming process, with New Zealand’s no-fault compensation system for medical errors offering a very different model of compensating patients for harms they experience2.

Although just over 7% of physicians in the US have a malpractice claim filed against them every year, this ranges from nearly 20% in high-risk specialties (e.g., neurosurgery, thoracic-cardiovascular surgery) to approximately 2.6% in psychiatry3. Even though psychiatrists are among the medical specialists in the US least likely to be sued, like other physicians they have experienced a substantial increase in malpractice claims in recent years3.

A small proportion of physicians have recurrent claims, with 1% of physicians accounting for one-third of paid malpractice claims. The risk of recurrent claims is lower among psychiatrists4. Psychiatrists, like other physicians, are generally required by state law to carry a minimum amount of malpractice insurance, which covers the cost of defending a claim and, if necessary, of compensating an injured patient.

Data about the bases for malpractice claims in psychiatry are not compiled systematically, but most successful claims appear to involve physical injury resulting from patients’ behavior (e.g., suicidal or assaultive behavior that results in harm to the patient or to a third party) or the actions or inactions of the psychiatrist that result in physical harm (e.g., failure to monitor medication side effects leading to persistent organ-system damage). Claims based on alleged negligence in psychotherapy are much more difficult to prove and, unless they involve boundary violations by the psychiatrist – such as sexual activity with the patient – are unlikely to be successful.

Malpractice costs in the US, including the costs of settlements, judgments, legal defense, and defensive medical practices aimed at reducing the risk of malpractice claims, have been estimated at over $55.6 billion dollars annually5. Although this cost accounts for only a small fraction of health care spending, it is significantly higher than in other countries. Physicians win the majority of the roughly 10% of cases that proceed to trial4. However, since a trial is not without cost, and given the risk of losing even a strong case, malpractice insurers often choose to settle claims prior to trial, reasoning that the cost of a modest settlement may be less than the financial costs of defending the case. The cost of malpractice cases and the associated burden of defensive medical practices have led to a number of efforts to reduce the frequency of claims.

State legislators in the US have pursued a variety of approaches to reducing malpractice claims, including eliminating punitive damages, reducing the period after an injury during which claims can be brought (“statutes of limitations”), and capping the fees that attorneys can receive from such cases. The most effective laws set limits on non-economic damages that injured patients can recover, e.g., compensation for pain and suffering6. The variable impact of these changes in the law have stimulated medical associations and health systems to experiment with approaches outside the legal system that might reduce liability risk.

Medical associations, such as the American Psychiatric Association, have produced practice guidelines, in part as a means of reducing clinicians’ liability exposure. Practice guidelines attempt to define the parameters within which appropriate clinical care may take place, based on evidence in the relevant medical literature. They are often written so as to provide flexibility to clinicians, typically noting a variety of acceptable approaches to any clinical situation. Conformance to a generally accepted practice guideline will generally constitute a defense to malpractice claims by offering proof that the defendant-physician has complied with a professional standard of care. On the other hand, failure to comply with a practice guideline does not necessarily prove negligence; the ­physician can challenge the guidelines themselves or otherwise attempt to demonstrate that his/her behavior fell within the parameters of reasonable physician choice. As with many attempts to reduce malpractice claims, it has been difficult to demonstrate that practice guidelines have been effective for this purpose, even when systematic efforts have been made to encourage their use7.

A second innovative effort to reduce malpractice claims is exemplified by the approach adopted by the University of Michigan Health System8. When medical errors result in harm to a patient, the system encourages prompt apology by the physicians involved and an offer of payment that is usually well below what might be awarded by a court. Evaluation of the program demonstrated that it led to a reduction in the number of lawsuits, lower liability costs, and shorter time to resolution of cases. Its success may be based, at least in part, on many injured patients’ desire for an explanation of what went wrong and an apology for mistakes that were made. However, apology laws may have paradoxical effects. One recent study found that they increased the risk of malpractice suits being filed against physicians who do not perform surgery, while having no effect on surgeons’ liability risk9. The effect may derive from patients’ greater knowledge that an error was made, which increases motivation to seek compensation.

Given the uncertain effectiveness of legal and systemic efforts to reduce the likelihood that a physician will be subject to a claim of malpractice, the best preventive measures may rest in the hands of individual clinicians. That psychiatrists are among the least frequently sued physicians is probably due, at least in part, to the deeper and more empathic relationships they tend to have with patients. Patients who believe that their psychiatrists truly care about their well-being are less likely to sue, even if something goes wrong. In addition to maintaining a caring ­doctor-patient relationship, other pillars of prevention include seeking consultation when facing a challenging clinical situation and documenting the rationale for treatment decisions in the patient’s record, including explanations of potential management options that were not selected1. As a general matter, doing what is best for the patient remains the surest path to reduce risk of malpractice claims.