If you're a doctor, the odds of you making it through your career without ever being sued are vanishingly small, especially in some of the more liability-prone specialties. Ilene Brenner is an emergency physician whose father was a malpractice defense attorney. When her turn to be sued came up, she learned a great deal about the process, both from her defense attorney, and her father. The appropriately named How to Survive A Medical Malpractice Lawsuit grew out of a series of articles she wrote afterward for EP Monthly, one of the throwaway journals in our specialty. She expanded on this series of articles and then published them in book form. The book is short (149 pages included appendices), well-written, well-edited, and most importantly, high-yield.
The book is divided into two sections. The first is a step by step guide to going through a medical malpractice experience, from the time you are served to the deposition, to the trial, and even to the appeals (in case you lose.) The second section gives a lot of tips about how to avoid getting sued in the first place because, let's face it, you've already lost (a lot of time, sleep, money, and self-esteem) the day you are served.
I've never been through a suit in my career (knock on wood) but I had the unfortunate experience of receiving a notice of claim in my first month of residency. Then I received another one from my second month of residency. Both of them went away quickly (I was taken off as a resident, and there was no real malpractice anyway.) However, due to these experiences, from the very beginning of my practice of medicine, I have been particularly attuned to the practice of defensive medicine, liability-conscious documentation techniques, and even asset protection law. But I still learned a ton from the book. Whether you are currently in a lawsuit or not, you should buy and read this book. She sent me two copies of the book. I was going to give them both away to readers. But I've decided to keep one for myself and only give away one of the copies. It's that good. When I get served (and I'm sure I will eventually) the first thing I will do is go back and reread this entire book.
Let's look at a few excerpts:
The average physician heads into the legal arena totally unprepared for what is to follow. For the uninformed, the experience can not only be frightening but also career ending. It is my belief that my book will help prepare physicians for battle….Doctors cannot sit back and assume that their attorney will save them. They have to save themselves.
Do not lose your compassion. It is easy to let the painful process of a lawsuit take over your emotions and make you bitter. Try to remember why you went into medicine in the first place: to help people. Compassionate doctors, in my opinion, are the best doctors. Bitter doctors, who do not care about their patients, make bad doctors. (They also get poor patient satisfaction numbers and more angry patients that can lead to future lawsuits.) Do not forget you are the same compassionate competent physician today as you were yesterday.
Although infrequent, patients can make complaints to the medical licensing board in your state. The prospect of a lawsuit may be a terrifying experience; however, a complaint that could directly affect your license is worse.
In summary, you want a good, experienced trial attorney, preferably a partner, who represents doctors most of the time. And if there is even a whiff of a conflict of interest, you must insist on your own attorney.
[In the deposition] try to use specific medical terminology and jargon whenever possible. This is an excellent strategy to force the attorney to use their medical knowledge….If the plaintiff's attorney does not completely understand your answer, it is harder for them to formulate questions to counteract it….Sure, the attorney could make you explain what you just said. But most attorneys have egos, and constantly having you explain your answers to them will make them look stupid….Do not teach the plaintiff's attorney the fact. Let their own experts do that. Think of it this way: the deposition is a document that is going to be used against you. The less there is, the less harm there can be.
I know of a number of physicians who keep a diary. It can be personal or medical diaries. For some, it is a log of their life experiences. For others, it is a list of the patients and their medical problems for informational, book research, or follow-up purposes….If you have any kind of a diary, throw it away now.
The plaintiff's attorney will ask you if you have ever had your hospital privileges suspended or revoked. Even though you will have some opportunity to explain that the suspension was “just for a medical records issue,” juries may not see this as insignificant.
I hope those excerpts give you a flavor for the book. I think it's a great book that every physician should read. Buy your copy now on Amazon!
What do you think? Have you been sued? What tips do you have for your colleagues? What books have you read about malpractice suits? Want to enter the drawing to win a free book? Comment below!
I too have been fortunate enough to not have been part of a malpractice suit, but would love a copy to read. Thanks.
We’ve been threatened by law suits. So has my brother in law and dad. Knock on wood, nothing yet. Love to win a copy
The one time (so far) I was sued, it took two years until deposition and being dropped from the suit. It’s still hard for me to think about the toll it took on me and my family.
Ob/gyns pretty much live with the spectre of potential litigation, so I would like to be entered in the drawing.
First time, long time! Graduating neonatology fellow and also interested in a copy. I agree – exercising compassion makes you a better, happier person and would seem to have a secondary benefit of minimizing litigation as well.
Pediatric Oncology here, which is a surprisingly low-risk field for litigation. I’d still love a copy. 🙂
Trauma/ critical care / general surgery here. I would like to be entered in the drawing to win a copy. Thank you
I enjoyed greatly her articles and have had the book on my wishlist for some time–however, it just irritates the heck out of me when something gets “physician-priced.” ($43 for 149 pages?!–yes, yes, this is 5 min of attorney time, but still, it’s the principle.) I recommend “When Good Doctors Get Sued” which I heard from a friend that it was a lifesaver. ($18, 140 pages) This book talks about each phase of the process and is very high yield. While I’ve not yet been sued, I’ve loaned it out to friends who have and they agree that it is good. I have been in several depositions and always reread the book the night before–I cannot recommend it highly enough.
P.S. There is a fair bit of info archived on the EP Monthly website.
It is a bit pricy isn’t it, although it is a niche book for sure. It’s interesting when you go to sell your book on Amazon. You get to pick the price on which your royalties are based, then Amazon sells it for whatever it wants (usually less.) Price it higher and make more per book. Price it lower and sell more. It can be tricky to find the balance that maximizes your revenue. It gets even trickier when you’re selling your book to a niche that is less price sensitive than the average Amazon customer. I keep meaning to monkey around with my book price to see if it increases revenue, but haven’t gotten around to it yet.
You have to realize there is a HUGE difference between self publishing and going through an academic press. My book is published by Wiley, so I have no control over the pricing. Wiley doesn’t have a ton of control over the price either. Amazon’s prices have varied by nearly $20, depending on supply/demand curves that defy the laws of economics. More demand? Price goes down. Unless there’s no supply, in which case Price goes up. When self publishing you definitely need to do the calculus to find the optimization point. Sometimes less sales at a higher cost are worth it. Sometimes if the goal is to get the message out, you lower the prices. Sometimes, a book is valued more at a higher but not too high price point. Frankly, I agree that my book is quite expensive for its size. However, I wrote it because of the huge gap in knowledge on this topic, and lack of intelligible resources. In doing my research I read everything out there. Most written by lawyers. Even good advice was hard to grasp in that context. I wrote this book from a doctor’s perspective but with all the legal advice of a lawyer and without the annoying legalese. If you think that $30/$40/$100/$200 is not worth it to give yourself piece of mind, prevent a lawsuit, or help you win a lawsuit, after all the money we’ve already spent to become a doctor…I had a friend rail against getting a new suit for a deposition/trial. Why spend the money? Sometimes money is well spent. I personally make a pittance for this. I truly wrote this because I was asked to by many doctors who liked my articles but wanted more.
Academic books like this are low volume sales. In order to justify publishing small books like mine, they have to charge much higher rates. Otherwise, books like mine would never get published. And I published to help get this needed information out there. It is not a wealth-building venture.
After reading that NEJM (or maybe it was JAMA) article a few years ago that showed that all of us except pediatricians and psychiatrists have a 99% lifetime risk of being sued, I become very interested in learning how to avoid lawsuits. Any new information is greatly appreciated.
I would like to be entered in the drawing to win a copy of the book. Sounds like a fantastic read.
Two words: Tort Reform!
Wonderful side article for the blog as it’s relevant to all of us. EMRAP has some recent, really well done ongoing lectures on lawsuits.
I think just the thought of a lawsuit is one of the more frightening aspects of it all. When you see stats as above that 99% of docs will be sued, it really can instill a defeatist attitude. Very sad.
Tort reform indeed. Looks like we’ve gone nowhere with this issue despite all the promises from leadership around the country. Please enter me for a copy of the book. Sounds quite interesting.
I would like to win the book. I thought it seemed overpriced too. I have been through a trial as I am an OB/GYN. My advice is teach the jury not the plaintiff attorney. Leave your ego at home. Do not get angry during the deposition or the trial. Follow your lawyer’s advice and instructions. Do not vary your explanation of what happened or your reasoning of why you did what you did. Practice talking to the jury. (My dog listened to me without comment.) Leave all trappings of wealth at home. I wore only a simple wedding band and necklace. No designer clothes, shoes, or purses. Drive your older car to the deposition and trial. Remember to beware if the plaintiff attorney starts acting friendly. Try to sleep and exercise. Do not sedate yourself. You need a sharp mind for the trial, deposition, and meetings with your attorney. If you are self employed remember to keep adequate levels of cash in your bank accounts for the trial. You will have to allow time for the trial itself and several days of preparation beforehand.
Another topic that is hardly discussed in residency. I’m a psychiatrist, and while my specialty is low risk, I still fear the narcissistic borderline who might sue me. Would love to win a copy!
I would like the book. Such a scary thing…I was “served” and was on a videoconference for several hours as they got background before realizing I was the “expert witness” and was able to bill them! Some of these suits are just crazy.
would love to win a copy of this book
Sounds like a great book. I often wonder about the interests of “my attorney” in the setting of being an employed physician with malpractice insurance from the hospital.
I would love to be in the drawing as well. I haven’t a clue about this topic but from what I here EM docs get tied up in some legal matter about every 5 years in my area.
I’ve appreciated that you have kept the blog fresh with some great posts lately. I thought for sure you’d slow it down once you got the book out there.
The other day I heard one of my attendings telling a resident that this is the last year they could contribute to a Roth and I couldn’t help myself from introducing them both to the “back door” method, citing whitecoatinvestor.com of course. 😉
The writing of blog posts is actually one of the parts I enjoy most. I just finished my post for July 13th for instance. It’s on rebalancing. 🙂 I have guest posts into May. I probably ought to slow down a bit and spend some more time working on the new book.
I worried a bit in the beginning about running out of stuff to say. That seems pretty unlikely after 600+ posts. It is interesting that many of the most popular/useful posts took the least effort/research to write and vice versa.
Have you heard of Lulu.com? I needed to publish something (only 3 books~350 pages) for personal use and each book was less than $10. The books look great. Since you advertise directly through this site, it might be worth looking at (along with amazon).
http://www.lulu.com/sell
Their site is kind of misleading with regards to how much you can make per book selling on Amazon. I’m not sure where they get their numbers from, but they certainly don’t match mine.
My resident wife sometimes worries about a bad patient suing her, and I always tell her that it will one day certainly happen, but that is what insurance and attorneys are for. 😀
Graduating medical student entering a high-risk specialty. I’m definitely interested in winning a copy.
Every time I think I’m almost done using your knowledge to set up our post-residency lives I get more homework! The ER doc in the house has raised self education on this topic as a priority, so yes, I would love to win a copy 🙂
It’s not called Continuing Financial Education for nothing. However, you do most of it up front. After a while, the law of diminishing returns kicks in.
Please enter me. I’m currently in limbo, post-service and pre-deposition, waiting for a possible Motion for Summary Judgement. Lousy part of the job, but a part of it nonetheless.
Hope I’m not out of line here but it looks like you can get her book for 8 bucks cheaper than Amazon at her website: http://drbrenner.blogspot.com/ . Looks like she’ll even autograph it for you.
Her website is pretty interesting and there is a short interview clip.
Man, I just lost 87 cents in Amazon commissions. Thanks a lot! 🙂
In the book Better by Atul Gawande, there is a chapter on lawsuits. It’s an interesting chapter. 2 main things for a successful lawsuit~ to prove negligence and harm.
I work for Kaiser. Does anyone have private malpractice insurance outside of Kaiser? (is it even recommended?) How do you know if it’s good insurance?
I gave a malpractice lecture at Kaiser, and many in the audience were equally unaware of their rights. Kaiser does a lot of arbitration, which is another word for settling. It gets you into the databank. When you sign up to work for Kaiser, you agree to let them go through their process for malpractice claims. While this won’t be a problem if you stay with Kaiser, it becomes a problem for going into private practice. You can always hire an attorney out of pocket, but you need to recognize that you have a contract with Kaiser you have to abide by.
Not much to add other than I too would love to be entered in the drawing. Always good to be prepared.