By Dr. James M. Dahle, WCI Founder
I wanted to highlight a paper that came out a few years ago in the Annals of Emergency Medicine. The paper and its accompanying editorial (behind a paywall if you're not a subscriber) are pretty revolutionary and a good opportunity to discuss both risk management and asset protection if you're worried about getting sued as a physician.
How Likely Are Doctors to Get Sued?
The paper was entitled “Provider and Practice Factors Associated with Emergency Physicians’ Being Named in a Malpractice Claim.” It looked at a bunch of physician (and one location) characteristics that one might think would be associated with a higher risk of being sued, using data obtained over five years from 87 EDs in 15 states. There were 98 claims involving 90 docs. The study looked only at the risk of being named in the suit, not the actual outcome of that suit. The nine factors included were:
- Total years in practice
- Whether they were board-certified in EM (remember some docs who work in EDs are not)
- Whether they are primarily nocturnists
- Total number of visits
- Patient satisfaction scores
- RVUs per hour
- Admission percentage rate
- Whether they work at multiple facilities
- ACEP Malpractice Environment Score
Guess which ones mattered? Here's the table:
The key results are the odds ratio on the right. An odds ratio of 1 means it doesn't make a difference, so if the 95% confidence interval of the odds ratio includes 1.00, then, statistically speaking, the factor doesn't affect your likelihood of being sued. Only two of the 95% confidence intervals did not include 1.00—Total Years in Practice and Total Number of Visits. Your board certification status didn't seem to matter (although there was a trend), which shift you worked didn't matter, your patient satisfaction score didn't matter, your patient acuity (RVUs per hour and admission rate) didn't matter, working at multiple facilities didn't increase your risk, and the ACEP Malpractice Environment score didn't seem to matter either.
What does that mean? It means whether you get sued is basically a crapshoot. As the accompanying editorial (Malpractice Claims: It’s a Crapshoot—Time to Stop the Self-Blame and Ask Different Questions) explains:
Why does this matter? It matters because we blame ourselves and each other for lawsuits when, in reality, it may have nothing to do with us. When I posted this on Twitter a few years back, people chimed in with comments like, “Just smile, if you smile you get sued less.” What this study shows is that it doesn't matter if you smile. We've been told for years that you need to treat people nicely, smile, sit down, spend time with them, and communicate well. Those are all the factors that we're told cause high patient satisfaction scores. But what does this study say? It says that none of that matters. All that matters is exposure—how long you practice and how many patients you see.
Strategies for Doctors to Avoid Getting Sued
While this information invokes a certain sense of fatalism, it also provides freedom. It's just like the freedom an investor gets when they realize that none of those talking heads on CNBC have any idea what the future holds and that they should just buy index funds. You no longer have to pay attention to all that useless stuff. You can now focus on what really matters. If you want to be named in fewer lawsuits, do the following:
- Work part-time
- Work in a lower-volume practice
- Don't supervise residents/mid-levels (increases the volume of charts your name is on)
- Retire early
That's it. Easy peasy. Forget all that other crap.
Of course, there may be other factors that contribute. As the editorial suggests:
The most important part of the article and the editorial is at the end of the editorial:
“The most important information learned from the [article] is that it’s a crapshoot. Physicians who treat more patients are slightly more likely to be sued than colleagues who consistently treat fewer patients over the years. If you practice long enough, you will be sued—and this does not mean you are a bad physician. You have plenty of company. When your colleagues are sued, it does not mean they are bad physicians. They have plenty of company. Furthermore, continued exploration into provider factors associated with lawsuits merely reinforces our own extreme self-blame and perfectionist ideals. Exploring patient factors is equally challenged because it can damage our relationships with patients before we even meet them.
For our own well-being, we need to practice good medicine, work ethically, treat every patient with equal kindness, and uphold our Hippocratic oath. Short of sweeping reform in the way we compensate patients for events currently handled by malpractice lawsuits, there appears to be little specific we as individuals can do to prevent the majority of malpractice claims. It is time that we teach the truth about this to our students, residents, and fellow emergency physicians. We need to cease pretending that a specific course, degree, or charting tip will prevent lawsuits. It is also time that we provide collegial and mental health support before, during, and after allegations.”
Quit blaming your colleagues when they get sued and certainly quit blaming yourself. It's not your fault. There's no reason to lie awake at night for the next five years worrying about it. I think docs would worry less about malpractice if they realized two things:
- It's just money and
- It's not even your money
More information here:
How to Survive a Medical Malpractice Lawsuit – A Review
It's Just Money
Let me explain. Malpractice is a civil tort, not a criminal case. You don't go to jail for civil torts. All you can be liable for is monetary damages. Money. It's about money. Remember the four legal elements of malpractice:
- Professional duty owed to the patient
- Breach of such duty
- Injury caused by the breach
- Resulting damages
You have to have all four for it to be malpractice. #1 is usually pretty easy, and the battle of the experts in the courtroom typically comes down to proving #2 (did you breach the standard of care?) and #3 (was that breach responsible for the injury?). A lot of people forget about lowly #4—if there are no financial damages, there is no malpractice. Remember, it's about money. (This is also why there is less liability in killing the patient than maiming them!)
You could do all kinds of crazy stuff to a patient and hurt them, but if there is no financial damage, there is no malpractice.
Key lesson? Malpractice is about money, not you. Now if you ask patients why they sue, they'll give these reasons:
- Concern with standards of care—both patients and relatives wanted to prevent similar incidents in the future
- An explanation—to know how the injury happened and why
- Compensation—for actual losses, pain, and suffering or to provide care in the future for an injured person
- Accountability—a belief that the staff or organization should have to account for their actions.
But what do they get out of the lawsuit if they win? They get compensation. That's what it is about. The attorneys view a malpractice lawsuit as “just business.” The more you can view it similarly, the fewer nights of sleep you'll lose when (not if) you're sued. Do they prevent similar incidents in the future? Probably not. Do they get accountability? Not really. They might not even get an explanation.
More information here:
What I Learned from Getting (Kind of) Sued
It's Not Your Money in Medical Malpractice Settlements (Usually)
In the event that you lose a lawsuit, whose money does the patient get? They get the insurance company's money. They don't get your money. Your money is already gone. It was used to pay the insurance premiums for the previous decade or two. Whether you get sued and whether you win the lawsuit, that doesn't affect your money. It's already been spent. You're basically a defense witness for the insurance company in its lawsuit. Thinking of it that way might also help you get a little more sleep.
But what about getting sued above policy limits? I'm amazed at how much time doctors spend worrying about this and how much time, effort, and money they spend trying to protect themselves against it. Think of all the things that have to happen for you to lose your personal assets in a malpractice case:
- You have to make a mistake
- That mistake has to hurt the patient
- The patient has to realize it
- The patient has to want to sue you
- The patient has to find an attorney
- The attorney has to think the case is going to be worth enough to spend $50,000-$100,000 of their money gambling on it
- The case has to go to court (nobody settles for more than policy limits)
- You have to lose in court
- The judgment has to be over policy limits
- The judgment isn't reduced on appeal to policy limits
What are the odds that all 10 of these occur? In my field of EM, I calculate them at about 1/10,000 per year. Since I'm now part-time, perhaps 1/20,000 per year. Probably even lower since I'm not in Illinois or New York. Definitely lower for about half the specialties out there as EM is about midway up the risk list.
Worry about being a great doctor, not about getting sued.
What would happen in the exceedingly unlikely event that you had a judgment above policy limits against you? Most likely it would be for less than $250,000 if you look at the statistics. You might lose a chunk of your taxable account once in your career. Big whoop. But even if it were for some ridiculous $10 million dollar amount, what happens? Well, you declare bankruptcy. What do you get to keep? It depends on your state but almost surely your retirement accounts; anything owned by your spouse or as tenants by the entirety; and maybe some or all of your home equity, life insurance cash value, and annuity value.
The Biggest Risk to Your Assets
Here's the truth about getting sued for malpractice. Eight percent of ER docs are sued each year, and of those, 93% are tossed out of court or settled before the suit gets there. When the suit does go to court, doctors prevail 79% of the time. While the average verdict in a suit is $800,000, many of the above-limits verdicts are reduced on appeal.
In reality, the biggest risk to your assets isn't malpractice. Unfortunately, it's divorce. The average divorce rate is 50%. Among physicians, it's 25%, but that's still significantly higher than the risk of an above-policy malpractice suit.
Want to protect your assets? Focus on your spouse, not on complex asset protection plans. If your partner's happiness is your top priority and yours is theirs, it's very unlikely that you will ever get divorced. The best asset protection technique: date night.
Maybe I sound a little Pollyannaish, but when I think about all the risks in my life, losing a bunch of money in a malpractice suit isn't one that I'm going to spend much time worrying about. After reading this paper, I'm going to worry even less.
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What do you think? Do you believe the paper? Do you think there is something you can do personally that will keep you from being named in a suit? Why or why not? Does this make you more likely to go part-time or retire early? Comment below!
[This updated story was originally published in 2018.]
I am going to have to go back and read the paper in full. It’s funny that the odds ratio table basically points out that the longer you practice, the more likely it’ll happen. One might have thought, before looking at that table, that “the more experienced you are, the less likely you’d make a mistake.” But, as you said, it’s not really about that. The reality is the more experienced you are the more likely you are to have been named whether a mistake was made or not.
I do agree that the odds of getting sued to the point that you start losing some of your own non-protected assets are exceedingly low. Ironically, this is one of the reasons that people tout whole-life insurance – despite the negligible chances of a law suit exceeding the coverage someone has.
Other factors that people commonly teach (and I am not sure are supported by the literature, because I am unfamiliar with it) include things like talking to the family about mistakes and bad outcomes. I’ve always seen this as a double-edged sword. It’s important, ethically, to discuss things that happen with family members, but it also brings about considerations that the family might otherwise not have had. In fact, I know of at least one physician that had this happen with a medication error that had nothing to do with a bad patient outcome, but because an error was made days before their death – they were named in the suit.
It’s just another example of how good doctors get named. And, in anesthesia, if there is a way to name the anesthesiologist, you better believe it is going to happen. Just one of the realities of practicing in this field.
TPP
Don’t equate malpractice to mistakes. They’re not the same thing. Most malpractice suits don’t involve a mistake. And most mistakes aren’t sued. They’re only tangentially related.
I agree this is one way that whole life is sold inappropriately, but it is true – in many states whole life cash value receives significant protection from your creditors. Given the very low risk, I don’t see that being worth the low returns, but if you really understand how the product works and want it for that reason, knock yourself out.
When something bad happens and the patient/family decides to sue, they name every doc on the chart. That’s how anesthesia and radiology often get roped in.
“Don’t equate malpractice to mistakes. They’re not the same thing. Most malpractice suits don’t involve a mistake. And most mistakes aren’t sued. They’re only tangentially related.”
THIS! It’s far past time for this “mistakes lead to malpractice suits” lie to die. Should we strive to practice good medicine? Of course! Does that protect a physician from a malpractice suit? Absolutely not. As a pathologist, I’ve been sued for malpractice once. My role in the case: I received a salivary gland resection, correctly diagnosed a salivary gland cancer, and correctly noted in the diagnosis line of my report that the cancer was at the surgical margins. There was no mistake to correct! The only way I could have protected myself from that lawsuit was to not have been reading surgical pathology slides that day. (Then one of my colleagues could have been sued in my place.)
Besides being false, malpracticce = mistakes is problematic because no matter how hard we try, mistakes are going to happen. A zero percent error rate is simply never going to be achievable, and pushing people to achieve the impossible leads to bad things (like burnout and suicides). It’s OK to be human! What’s important is trying to identify where and how mistakes are made, and then altering processes to minimize the chance of a repeat of that mistake in the future. Malpractice is mostly a systems problem.
I wish medical students were told this information up front, instead of having to learn it themselves the hard way down the road. It would spare them a lot of pain.
What? Makes no sense. Its 100% volume related. The more experience=more pts seen=more lawsuits. You’re thinking about this wrong.
That was exactly my point. Some people think about this wrongly. Hence, why I said “one might have thought.”
Didn’t say that I thought that.
It’s similar to driving a vehicle. Chances of getting into a collision at any given day is low but as years go by, there are more and more chances that you get into at least one car accident in your life.
Excellent article, I love it. This is a perfect example of how we should stop blaming ourselves. Thank you. Especially in OB GYN most of us will eventually get sued especially in a high lawsuit state like NY. My favorite part was the lack of impact of patient satisfaction scores because I think that we are beaten over the head with the false importance of them.
As I drive around Southern Florida this week and see all the attorney billboards, I’m amazed there are any doctors here at all. Same with Cook County.
My all-time “favorite” billboard was on the toll road between Orlando and Miami. It was advertising WhoCanISue.com. Absolutely unforgettable.
You can also sue “WhoCanISue.com” because reading their billboard distracted you into having a car accident.
I think there is definitely a stigma of being named in a malpractice suit because as a physician you certainly don’t want to advertise it to your colleagues for fear of being shamed. The odds are that during your practice you will have a suit brought against you but personally in a large practice such as mine I only have heard of a couple when the odds are there are far more.
It is a shame because we could be a great support group for each other and give advice to someone who is hit with his or her first one. Some specialties are definitely at higher risk and there are also some components in each specialty that can put you at higher risk. Radiology usually ranks near the top in specialties that get sued and in the field of radiology, mammography has typically been the area where there is more risk compared to other modalities. Similar with the OB part of OBGyn.
Getting to FI can allow you to tailor a practice where you can minimize exposure to a lawsuit by eliminating the higher risk sections. Also allows you to ramp down your clinical hours which as you pointed out decreases exposure to a lawsuit as well.
Great concept about how we already paid for the monetary part of a lawsuit because of premiums. It’s mainly the insurance company that is now fighting to keep as much as it can.
That’s my point, and the point of the article. That stigma should go away since it is essentially a random event. Now this article didn’t look at every possible factor, but it looked at a lot of them and all it came away with was exposure.
Part of the issue with radiology is they get pulled into everyone else’s lawsuits. Very few cases that go to court never had any imaging whatsoever.
If the stigma were removed how much would you discuss an active malpractice case pending litigation. Does the insurance legal rep tell you to keep quite and only talk about the case in court?
You’d be a fool to discuss a case that’s pending litigation, as in most settings anything you say is discoverable by opposing counsel. That’s one of of the things that makes enduring a suit so hard: at the very very time you most need the emotional support of your colleagues, you don’t dare seek it out.
But even after a suit is dismissed or settled, most docs are unwilling to talk about it. That is something that could and ought to change.
I think by that time you’re so sick of it and feel like everything that could be said about it has been said. And it’s not like it paints you in a good light. Hard to blame anyone for not talking about it.
But not talking about it helps perpetuate the myth that being sued for malpractice is something under a physician’s control, and that someone who’s been involved in a suit must be a bad doctor (even though most of us who’ve been in practice for a while know that neither of those things are true). And those myths cause active harm (which is one reason I’m glad to see you publish this particular blog entry on WCI).
I don’t blame anyone who’s been involved in a suit for not wanting to talk about, but I do think it can be helpful to our younger, less experienced and more idealistic colleagues when we do.
You forgot one other factor…don’t go into emergency medicine. There is interspecialty variation in malpractice claim rates that is significant. You come from an EM perspective so your article makes sense in that light. Primary care specialties have less malpractice claims than our specialty or surgical colleagues. There is still the random nature to it as you mention, but it’s postulated that a longitudinal patient relationship does help to lower our malpractice claims. Tougher to sue someone you have known for years than someone you only interact with for a few minutes.
For sure, and perhaps that’s why primary care is sued so much less frequently. But EM is in the middle of the spectrum as far as malpractice list. Lots of specialties that are worse.
Also, specialties vary in the frequency and size of settlements/court losses. In my field (pathology), the average practitioner is only sued about once every 12 years, so on paper we’re one of the lower-risk fields – but when there’s a payout, it’s likely to be large, because an incorrect diagnosis of cancer leading to either unnecessary treatment or significant delay in diagnosis is understandably seen as a very big big deal (even though there’s no 100% foolproof way to avoid such an error).
No matter what specialty you’re in, you’re taking your chances at the roulette wheel. It’s simply an unavoidable part of medical practice in the United States.
Plastic surgeons are sued often (top 5 last article I saw), yet they are near the bottom of the list on settlements/awards. This is likely due to the unreasonable expectations of pts and other pt specific factors, and suing for things that have caused no injury whatsoever.
Its still super annoying, time consuming and stressful.
The whole first half of the article emphasizes the duration and randomness of getting sued, and then #1 bullet in the asset protection section says “Make a mistake.”
It’s pointing out that you can’t lose money if there is no breach of the standard of care. Does that make sense?
Maybe there should be an explanation there.
However, its not really true. Once you go to a jury, even in a clean cut no breach of care, even if no injury, there is a chance, albeit small, you still lose. A jury is a bit of a crap shoot and cant be ruled out.
Fair enough.
I have been to national ER risk management meetings where it was reiterated that no case should go to trial if truly a mistake was made. It gets settled. So if you as a physician lose at trial, simply their attorney was more convincing to the jury than your attorney. Again, like Jim says, try not to take it personal. Simple but not easy. Occupational hazard of our occupation.
This is a pretty good point and imagine its largely true.
I’d say its not just your attorney though, its the jury, what they ate, all kinds of subjective non sense that should have no bearing, which is why its still a roll of the dice in the end, even if weighted dice heavily in your favor.
This is totally true. We can talk about the legal prerequisites for malpractice all we want but when the verdict depends on a jury of your “peers” it’s a totally different story. If they don’t like your demeanor, your tone while providing testimony, or the way they perceive you spoke to a patient, or any of a number of random, arbitrary factors they can feel justified in awarding something to the plaintiff because in their mind that’s justice regardless of what the law says.
I can comment on this topic from experience. The money you lose is not from a judgement above your policy limits but from time lost from practice. This can be significant. You are more than a witness for an insurance company if you go to trial. If you do not work as hard as your lawyers you can lose your case. In OB the bad outcome is what gets you sued. Nothing else matters really.
Excellent point. Not to mention money lost from the stress of the suit.
Excellent article! A very fresh perspective put together clearly – needs to be shared a lot. Perspective is everything about handling events that are not as common and out of our control.
A point to Hatton1’s point – if you have taken care of your finances, you’ll have a very different reaction to the stress of being sued vs. of you live paycheck to paycheck. If you already work less, it is easy to handle less work under stress vs. working a lot – on top of having to cut back because of time spent with attorneys, and further lack of ability to function due to stress.
what are some typical stressors that a physician faces when they’re sued? And would you say after reading this article you’ve shared, physicians who are sued would be less likely to face such stresses had they not read such article you have written?
I hope so, but I don’t think anyone is going to spend any money or time doing a study to determine that.
Anyone know if they included any federal health facilities (military, VA, NIH, etc)? Would be interesting to see if knowing you are only going against Uncle Sam and his deep pockets made a difference.
I doubt it.
Federal employees are exempt from malpractice claims and thus don’t need malpractice insurance. It’s one reason people go from private sector to VA.
They still can get sued though. The difference is the defendant is the US government as a proxy for the physician involved. I know of a couple VA physicians that have been sued.
correct, Federal and most state employees do not need to carry personal malpractice insurance as the claimant is suing the entity, not the individual. However, the same process ensues which entails meeting with the institutional attorneys, depositions, etc. ..I cannot speak for experience other than being on risk management committee for the Feds and all the parties are still roped in and it can be very time consuming. Once the case is over the institution also then decides whether the physician is reported to the data bank or not.
I wouldn’t call the process the same. I would much rather go through the federal process than the typical malpractice lawsuit process. Personally, I think it is much less likely to end in a database report too.
There is a somewhat similar system in place though and you probably don’t want too many strikes on it. But it’s a much fairer system where docs are looking at what you did rather than a jury.
That would be preferable for sure.
It’s all about the money. Great point. If you ever get deposed, don’t try to explain why you were right. Just say as little as possible. They are not trying to find the truth. They are trying to find ways to win the case.
Don’t carry the casket alone: If you have a difficult case , especially if the patient’s very ill and unstable, swallow your pride and seek help sooner rather than later. And don’t let the hospitalist/consultant talk you into sending a patient home unless you’re comfortable with the diagnosis and disposition. Maintain a friendly, informative attitude w/ the patient and family throughout the process and be the patient’s advocate dealing w/ the hospital bureaucracy. Informative article, even though I’m retired.
“Don’t carry the casket alone: If you have a difficult case , especially if the patient’s very ill and unstable, swallow your pride and seek help sooner rather than later. And don’t let the hospitalist/consultant talk you into sending a patient home unless you’re comfortable with the diagnosis and disposition. Maintain a friendly, informative attitude w/ the patient and family throughout the process and be the patient’s advocate dealing w/ the hospital bureaucracy.”
Do all these things, get sued anyway.
(It’s not bad advice, it just doesn’t offer any real protection from malpractice suits. Practicing good medicine is NOT protective. It just make sit more likely than not that a suit will be unsuccessful.)
WCI, I am liking the subtle transition of this personal finance blog to overall physician wellness. I think finances play the major role in physician wellness, as does fear of being named in a lawsuit. It is particularly comforting to realize that everyone will go through it, it’s about money, and its not even your money. There certainly is a stigma related to being named in malpractice, and certainly the support structure for physicians is not what it should be.
I wonder if there is a subtle transition. There certainly is in my life and I suppose that bleeds through into what I write about. But there was/is no planned transition.
I think your overall mission statement is insight into your passion for helping doctors. Helping them get a fair shake on wall street is certainly personal finance, but I think you really want physicians to get ” a fair shake on life”. I think it is needed in a time where physician burnout is so high and seems to be on the rise. Keep up the good work
“WCI, I am liking the subtle transition of this personal finance blog to overall physician wellness.”
I’m liking it too! Especially since it helps keep the blog fresh. Let’s face it, there are only so many ways one can say “pay off your loans ASAP, live below your means, and save!” before it becomes repetitive.
But I get to say it 10 different ways on a blog, on a forum, on Twitter, on Facebook, on video, on audio, live at your conference, live at my conference, in an online course etc etc etc. 🙂
In our town, VA doctors get out of taking “city call” because they don’t actually carry malpractice insurance. Also having been sued twice, once a pharmacy mistake but doctor is the one in court and the second a delay in diagnosis when I had left the state for four years and came back and saw patient four years later (while undiagnosed tumor had time to grow). Your lawyers can only help so much because they just don’t know medicine like you do. HOURS of my life taken, both practice time and family time. Both took 3 years to resolve (settle). I had to really work at liking my patients again. Your colleagues don’t really want to talk about it and frankly you shouldn’t talk about it with anyone but your lawyer, because any of that chatter can be used against you. The initial temptation is to defend yourself to the world. I used to say yes to any patient who needed my skills, day or night, but now have a closed practice and look forward to retirement.
It might add to your financial burden a small amount but I would recommend seeing a psychiatrist (one who does therapy) while going through a lawsuit. I have seen several physicians through this process and you are correct that it is a lonely, horrible journey that can make even the most pollyannaish doctor jaded. Content of psychiatrist-patient sessions are protected.
The facts of your care by a psychiatrist may be protected from discovery in a civil proceeding, but you will have to disclose them in many other situations, including physician and surgeon license applications or renewals–security clearances, various other kinds of licenses under state law, including license to carry, and probably others. The people who judge your application for such licenses or clearances are often not medically trained. Rest assured your record of psychiatric care will be perceived as a black mark.
This article came out soon after I had asked to drop to 7 shifts/mo. On the one hand, it was affirming…on the other, it made me wish I had asked for even less work!
It is a highly complex issue that they tried to tackle. I really do think there is more to it than time playing in the minefield (two docs with identical practice types/volumes/number of lifetime shifts, I cannot believe the one who generates 5 complaints more each year isn’t more likely to get tagged), but yes, it is a smaller effect. To use your mutual fund/CNBC talking head analogy; it is a bit like choosing between index funds with an ER of .05% vs .06%. Yeah, there is a difference, but it pales in comparison to stockpicking.
What’s really sobering is realizing that even if you quit the field entirely tomorrow, you’re still at risk for the next ten years. Gotta wait for the statute of limitations to kick in before you can completely relax.
There just has to be a better system for compensating patients who’ve suffered real harms than the one we have today. It’s just too bad there’s zero chance we’ll ever implement one.
Exactly. There has to be a better system, especially as we’re mostly employed and decisions are increasingly guided/taken over by institutions, insurances and whatever your drop down menu allows. That its still a “personal” liability is really ridiculous.
Agree its unlikely to change anytime soon.
You mean 20? In most states it’s 2 years from the time of discovery of the error or from the time the person turns 18. Varies by state of course.
Been sued and had it dismissed twice already in my 6 years out. Not sure how to prevent the actual suit as I am often nice but can promise you that good documentations n is more likely to save you in the end. Be clear andwrite down what was discussed. If a situation feels hairy (the interactions or the outcome) then document even more thoroughly. This is what will save you in the end. Not intent but documentation. If you did not write it then you did not think.
I actually think sometimes you’re better off being frank and extremely straight forward with pts that are likely to feel “wronged” and entitled to compensation, which I would nearly guarantee is the absolute driver behind getting sued. Whether or not an actual complication/problem occurred, it is the personality of the pt in the end (unless an egregious actual error occurred, or an unexpected death as those often are suits no matter what) that determines this, and the more you practice the more you come across them. They abound more in some specialties than others as well.
If you’re a nice, chill person (which having met you I know you are) I feel at times pts take this as weakness or an admission of some sort and you have to reorient them to reality. I was way too nice and chill with pts in the beginning and led to lots of people trying to take advantage, now I try to be very firm and clear when the situation warrants. Its amazing how much can happen from a simple perception of an open door one way or another, then the dominoes start falling and people can become wedded to their dumb decision that probably wasnt that important to them in the first place.
In my field the practice always seeks to placate like crazy to avoid bad yelp reviews, etc….but this breeds lots of opportunistic abuse by pts. They arent dumb. If I have a pt that is starting to act like that with no actual poor outcome of any kind, they get a stern reorientation to the relationship, and I’ll fire them next. Not worth the time. Some people live for drama, cut them out.
The money you lose is the increased medmal premiums you, and your partners, pay after the insurance payout. For a W2 employee, you lose when you are no longer employable.
How many lawsuits would it take on a doc’s record before you wouldn’t employer her?
How much did your malpractice insurance premiums go up after a lawsuit? How long did they stay up?
I can tell you that there’s a difference between getting named and dropped vs. getting named having a portion of the charges ascribed to you. Named and dropped is a minor annoyance. Every time you fill out credentialing paperwork you must list your suits no matter how silly or trivial. Named and having some of the monetary damages ascribed to you means that you are reported to the national practitioner data bank which can alter insurance rates or make it difficult to get insurance. (From what I hear you have to get sued successfully multiple times for this to happen).
If you’re employed by a hospital and the mistake was a “system error” (i.e. you were the attending, resident over doses patient, pharmacy misses this and dispenses med, nurses misses and gives it to patient, patient suffers harm) the hospital can drop the doctors from the lawsuit and have the suit be just against the hospital. Now if you truly violated the standard of care or provided care that negligent sometimes they will put a portion of the damages to you.
The other thing I have been told (and I find this rather morbid) is that unlike the adult world, in pediatrics if a patient dies the ability to sue is diminished significantly while if the patient is severely disabled the lawyers have dollar signs. Since wrongful death doesn’t generate nearly the amount of judgement as a lifetime of suffering and chronic medical care.
What’s most important is to not let the lawsuit affect your self worth as a physician. Easier said than done i know.
The hospital doesn’t drop the doctors, the plaintiff and their lawyer do.
You are right. I should have elaborated. The hospital attorneys can request to have the doctors (and nurses) removed from the suit so the plaintiff is just suing the hospital. Doesn’t always happen though…
Does anyone else find it ironic that one of the advertisements at the top is from a trial lawyer firm asking ‘have you have been a patient of Dr. T…….. and if so, join our class action lawsuit against him’? This is a perfect example of how screwed up our medical system is. These scumbag lawyers are just searching for ways to screw the next doctor for a big pay day.
As for me, been in 2 lawsuits in my 8 yrs in practice. First one was a facelift where I did nothing wrong but my lawyers forced me to settle after over 2 years of defense as it ‘cost less to settle than go thru trial’. Got a nice $9K/yr premium increase on my medmal on that one, on top of many stressed out sleepless nights dealing with depositions, meeting with my lawyers, lost work revenue, etc.
The second suit is ongoing after 3 years- pt had a traumatic fall and fractured multiple bones in his face with multiple fractured/lost teeth, on call maxillofacial doc refused to come in because it was ‘too complex’, so ER called around and got me, and wanting to help out like an idiot, I went in at 2 AM to perform extensive facial reconstruction of maxilla/mandible/ ZMC/ orbital blowout fractures. Long story short, I saw him for all his followup visits and he went on to heal well with good restoration of form and function, but one day before the statute of limitations expired I got served a nice ‘intent to sue’ letter during office hours in front of my other patients which was ‘lovely’. He claims his dentist saw a fractured tooth root on a panorex and blaming me for it. This dental ‘colleague’ apparently also told him per the deposition that I caused it and ‘it borders on malpractice’ throwing me under the bus! With colleagues like that, who needs enemies?? This pt who I helped when noone else would and I was not even on call, and has not paid a single penny for my services is now seeking over a Million dollars in damages!
Needless to say I have lost all hope in my fellow man and no longer volunteer to go to the ER for any reason. I am also much quicker to dismiss any patients who may be a potential ‘red flag’ and no longer volunteer on planes when the inevitable announcement comes ‘is there a doctor available on this flight’? No good deed goes unpunished and I will not be falling for that again!
This is one of my many gripes with medicine these days and don’t get me started on these unscrupulous multi-billion dollar insurance companies that do everything possible to deny payment on medical claims while they rake in the profits by significantly raising insurance premiums on everyone while passing more of the healthcare costs onto its subscribers who also refuse to pay, pitting patients against the very doctors who help them. There is no oversight on these massive insurance networks that keep getting richer while screwing doctors out of making a decent living. As for me, as soon as I save up enough money for FIRE with WCI’s guidance, I am out of here!!!
#burnedoutmd
What ad are you talking about?
Shouldn’t have settled if you felt you actually didnt have much liability. Lawyers are getting paid either way, it shouldn’t cost you anything extra.
Unfortunately there are some less than respectable colleagues out there that are very loose lipped and say things they absolutely shouldn’t. This was shocking to me as we were trained to never do this kind of thing, especially given how frequently pts dont understand their treatments at all.
Totally agree about doing things, it’s just not worth it, and it’s a great practice to cut people at the earliest sign. You dont lose any sleep over people you dont operate on.
It sounds like you’ve been through the malpractice mill, and I’m really sorry and hope you extricate yourself soon.
One question I have is, in these situations, don’t they depose the actual practitioner (dentist in this case) instead of taking the plaintiff’s word regarding what the practitioner said, because that would be hearsay?
WCI, what about the possibility of being reported to the national practitioner data bank if you lose your case? Do you have any insight into how this negative mark could affect one’s career?
I currently have two ongoing malpractice cases, which happened almost simultaneously after 15 years of a perfect record…both of which could end up reported to the NPDB if there is a bad outcome.
Thank you for your awesome website!
Having been on the credentialing committee and/or MEC at several hospitals, one report is pretty standard. If you have 3 or 4, we’ll probably look a little closer at you, especially if you’re not a surgeon.
You’ll probably have no report, or at worst one from these two suits. Not a huge deal, but it does mean you’ll have to give a little schpiel about it each time you apply for privileges. Just draft it up with your lawyer initially and use the same wording each time.
Any advice from surgeons out there about avoiding malpractice cases? (Ie. Is there a way to avoid them, or is it also a crapshoot? Anyone know of surgery or surgery subspecialty articles like this?)
Do you feel like taking more complicated cases/patients leaves you at higher risk of being sued due to a poor outcome? What about doing cases that are in your specialty but you don’t do frequently?
I am 2 years out of fellowship (ortho), and have sometimes shied away from complicated cases or things I haven’t done in 3-4 years or didn’t see in training for fear of being sued. Is that warranted?
Thanks in advance for any comments.
Not a surgeon, unfortunately, but I hate to see your question dangling in the wind, so here goes…
Avoiding cases that stretch the limits of your training and experience may decrease the chances that you’ll lose a suit if one is ever filed. But there is simply nothing you can do that can guarantee you’ll never be sued. The only protection that’s ironclad is to stop practicing medicine.
A follow up to my first comment. My (fabulous) attorney told me early on: “the truth doesn’t matter” when it gets to the legal arena. Doctors who did nothing wrong can lose and doctors who were negligent can “win”. Those comments really helped me handle the outcome. I met a lawyer a few year ago who had been a surgeon first and lost his hand due to an injury and gave up medicine for law. He basically said that although there are very ethical lawyers, the bottom of the barrel for law is much deeper than anyone who got through medical school. The lawyer for the prosecution (for the pharmacy error) played dirty and went after my medical license. I was dragged in front of our state licensing board. No matter that I saved the patient’s life and that in fact the pharmacy error was inconsequential in the big picture. Yes, it was sent to the NPDB. That did not impact my practice. However when one tries to change jobs, bias creeps in, and new employers pay attention, no matter how spurious the claim. The main thing is that you cannot let it destroy your life. And in the context of this website, become financially independent as quickly as you can.
Excellent article ! has saved me some stress over this issue. Thank you !
Hello
I read your article had a few comments. This is a well written article.
Here are my questions
1) Would anyone recommend working for the federal government such as the veteran’s affairs or indian health service because they offer better malpractice protection especially in states with no malpractice caps? What about working or the state and local prison as a doctor? I want to do 4-5 years with the VA/IHS and then do part time with the prison system 3 months out of the year
2) What has anyone experience been with telemedicine like AmericanWell (I hear they make patients sign a liability clause to prevent lawsuits)?
3) Has anyone done any disability physicals, DOT physicals or Medicare physicals? Are they consider low liability practices?
I want to comment that I really like the article the mantra seems to be pay off loans, save save save and retire early. I have the first one done but working on the other two like crazy.
Any thoughts.
1. Just for that reason? No. But it’s nice icing on the cake if you want to work for the VA or military etc. Sounds like a great option for you because you want to do it anyway. Malpractice just isn’t a big enough deal to drive this decision though.
2. Might want to ask that one on the forum or FB group. Few are going to see the question here and I know nothing about them. If you want to do telemedicine, why not?
3. Not much liability there.
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While I don’t doubt that many malpractice lawsuits are frivolous, the tone of these comments suggests that ALL of them are frivolous. That’s not true, and as a physician community I think it would be good for you all to better identify who those bad apples are and more quickly get them out of the profession. Just throwing up your hands and saying “it’s impossible, don’t worry about it if you get sued, you’re still a good doctor, etc” without also saying when you should be concerned does a disservice to the patients you purport to serve.
I am a malpractice victim, and (without getting into the details) my surgeon unnecessarily rushed a procedure that left me with a lifelong health condition, and terrified my family during the initial recovery where they weren’t sure I was going to make it. I sued, and the surgeon settled relatively quickly at their 7-figure policy limits. Never went to trial, or arbitration, or even to the state verification board (ie board of physicians that determines whether a case can go to trial).
I found out later that this surgeon has a history of being sued wherever she went, and that she never stayed at a single hospital for more than 1-2 years at a time. In my case, I learned that she basically lied to the credentialing team at the hospital that I went to, but the hospital had basically rubber-stamped her paperwork and ultimately granted her credentials at the hospital. Once I sued, the hospital dug through the paperwork and ultimately discovered her history and fired her.
My second surgeon (ie, the one that fixed most of the first surgeon’s mistakes) reported her to our state licensing board when he discovered the serious errors, but that body ultimately just gave her a slap on the wrist – I think they called it a “note to file,” but no removal of her state license. (It didn’t matter anyway, since she moved on to another hospital shortly after I sued.)
So based on this, there are some additional factors one could consider for rooting out bad physicians. For example – number of insurance claims within xx% of policy limits, number of lawsuits per year of practice (against a baseline per field , etc), whether the physician has had credentials removed, average duration of employment at a single location, etc. I’d also like to see this information in a public database so that I, as a patient, can see what I’m getting myself into before exposing myself to potential harm. If I had known this surgeon’s history, I would never have used that person – but this information is difficult to obtain, and the state licensing boards (who are supposed to oversee this) are overwhelmed and don’t appear to communicate well with each other when doctors move.
You’re right the fact that this power is delegated to the states creates an environment where one can slip through for a long time. The malpractice/court system is unfortunately the worst way to keep bad docs out, except all the other ways that have been tried so far. Most suits aren’t malpractice and most malpractice isn’t sued.
I just had a random question popup in my head. Have there been any physicians who were fed up from having given care to a plaintiff only to get sued that the physician decided to just put a lot of their money and time into suing the patient and bankrupting them? I know this sounds ridiculous, and I’m just curious if this has ever happened before. thanks
Most docs don’t hate their patients that much. In fact, they feel badly about the outcome, even if they know they didn’t do anything wrong. Besides, attorneys generally take these cases on contingency, so it doesn’t cost the plaintiff anything when they lose.
Maybe a doctor who thinks so little of himself or herself, that she would just cave, doesn’t deserve justice. “Doesn’t cost the plaintiff anything when they lose,” The White Coat Investor asserts? I suppose if you calculate those costs only in dollars. But there is no winning a lawsuit, not for the doctor. The only questions are what and how much the doctor loses–reputation, peace of mind, etc. Those are costs, too.
By the way, I tried suing a patient for dragging me into a baseless lawsuit as one of many defendants (I was dismissed early from the lawsuit). My lawyer told me forget it, because the offender could file a SLAPP motion, which in my area the judges usually dispense like a vending machine, and I would be on the hook for his legal expenses. Yes, the patient could sue me for reasons that were pure fantasy, easily seen from the medical record, and then just walk away when it falls apart in discovery. But if I try to sue for the wrong done to me, I am by law immediately in danger.
Do you see how the system is rigged against doctors? While we were busy taking care of our patients, while we considered dirty politics beneath us, we failed to prevent it. We allowed ourselves to become victims.
You know the plaintiff is the patient and the doc is the defendant, right? So no, it costs the plaintiff nothing to lose. Maybe it should, but it doesn’t under the current system. They lose nothing but their time. Their attorney has a lot more valuable time to lose though so that’s probably a more significant deterrent on baseless law suits.
Sorry, my mistake. Yes, I know the plaintiff is the patient. And it costs the plaintiff nothing to lose. The plaintiff lawyer has every incentive to name every doctor whose name is on the chart, and the system is rigged to allow lawyers to shoot first and let the discovery process sort ’em out. The casually accused doctor is left with 1) having to fight to get a dismissal, which often requires more expense for his insurer and 2) a black mark on his or her record. In answering the question “Doctor, have you been sued for malpractice?”, would you rather answer “No” or “Yeah, but I can explain”?
My experience is that most doctors in training don’t know the score before they get out into practice. I suspect you’re an exception in learning about it in training.
My point is that doctors don’t have to volunteer to be victims in this wicked shakedown. It’s their choice.
There’s one other strategy not mentioned in the article that physicians can use to reduce and actually eliminate malpractice risk: get out of clinical medicine. I know retiring early was mentioned but transitioning into non-clinical roles can allow you to continue working and making an income while removing the stress of malpractice risk.
For 40 years (I’m retired now) I’ve listened to doctors say these same things I’m reading in the comments. Any doctor who has been in practice for a few years knows that being sued is part of the job, a part they never, ever told you about in pre-med, med school, or residency. We all know that for all but the most flagrantly incompetent doctors, there is basically no relation between your level of skill or even whether you make a mistake that injures someone, and getting sued. We all know that the medical “malpractice” system is little more than a genteel extortion racket, and to add insult to injury, it is a semi-official proxy for the public’s assessment of a doctor’s competence and caring–the very traits we stake our personal worth on, that we live for.
But here’s the thing–we all know, deep down, that it doesn’t have to be this way. We all know that we could stop the entrenched evil of this unjust system in a week or two if we had the guts to do it. We all know that the public desperately and immediately needs us–and our good will. But we have shielded the public from that reality. We have sucked it up. We have agreed to play our part as good little victims, and we have been too afraid to throw off the chains.
It is time, at long last, for a change. It is time to withdraw our precious lifesaving skills for a brief time to show the public how desperately and how immediately they need us–and our good will. Are you ready? Have you had enough?
Surprised nobody told you about being sued in med school or residency. I was well aware of this risk.
And no, I don’t think you’re going to find very many takers for your anti-lawsuit strike.
I think you’re right, sadly. Doctors as a group seem to have made their choice to be underlings. I still hear a lot of complaining, though.