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!
Sounds like a worthwhile read. Would love a chance to win a copy! Thanks for the review.
In EM, getting sued not a matter of if, but when. Often not related to quality of care. Practice good medicine, more importantly be nice, and if named, hope your note is good. Please put me in the drawing.
Never been sued, but it’s a horrible feeling when a patient complains about your care, even though you feel you went the extra mile for that patient. Those days are thankfully fewer than the days when I feel patients appreciate the care.
Once had a friend named on a lawsuit that she literally only saw for 5 mins on their way out the door after having been treated by someone else earlier that day; still took about 3 months of time from clinical work. Long story, but basically unhappy family and a poor but unavoidable outcome.
Definitely interested in the drawing!
Graduating dermatology resident here. Would really love a copy!
Sounds like a very handy book to have around; please enter me into the drawing. I have been verbally threatened but have not gone through a legal process yet thankfully.
Would love a copy! End of residency around the corner
Would love a copy!
Sounds great, would love a copy as well!
Thank you for your review and insight.
Would LOVE to win a copy. Thanks!
I’ll put my name in the hat!
Would love a copy. Wife is an OB/Gyn resident, and I’m a surgical resident. Thanks for the review.
Listened to a few good lectures on EM audio digest by Gregory L. Henry a few years ago. I’m Pulm/CC but those lectures were amazing and he’s a very entertaining speaker. Highly recommended if you have access. I have checked out this book recently but I think I passed on cost too.
Thanks! Would love to learn more with a free book!
I’d like to enter the drawing as well. I just graduated from a Pediatric Dental residency. Still early into private practice, never been sued, but did have a case where the mother called to complain to her insurance company about our practice. I would love to learn a bit more about malpractice suits!
Residents hardly get exposure to this – most of what we learn about the medico-legal system is with attendings’ stories – so having it all written down would be a great resource.
I’m curious to find out why she says to throw out any journals, pt lists, etc. Guess I’ll read the book if I win!
The Plaintiff’s attorney can and will request all of those items, and they definitely will use that information against you in ways you cannot even imagine. As was excerpted above by WCI, the less they have to use against you, the better. Don’t think keeping an anonymous blog of your experiences will protect you. They can subpoena that information, passwords, etc…As attorneys become more social media savvy, the more dangerous social media can be to your case.
So WCI, have you disposed of all your personal journals? I have one that I write in 1-5 times per year over the last 15 years. It’s mostly about my personal life and family, but naturally I’ve written on my feelings about medical training and practice and patient encounters. It seems it would be a shame to discard all those personal reflections just out of fear of getting sued someday.
No. Some things are worth losing a lawsuit over. Besides, I’m sure I’ll get hammered for having a blog about finance and investing when I get sued.
The best defense is to not let the offense have anything to work with. That being said, if you must have a journal, eliminate dates and if patient related-any patient identifiers. I never said you can’t have a blog, after all, I have one. Just be smart on what you post. Don’t post about going out and drinking. Don’t post about being sad, sick, or frustrated if you have had a recent shift. Don’t tweet about a recent patient. Be careful about giving medical opinions online. If one of these opinions is in the same subject matter as a future lawsuit, it can be used against you.
There is nothing that I can see about blogging about finance that can get you into trouble. I have not been sued since I wrote the book, however, my lawyer said it is clearly something that the plaintiff’s attorney will try to use against me. At the very least, they will prepare more against me.
I’m always interested at how much social media is used in dentistry and medicine. I’m not that into facebook, but seems like some of the stuff offices post could come back to bite them, just from a HIPPA standpoint.
Just got served last week and first time named in a case. Could really use the book right about now!
Neuro resident here. I’ve never been sued but did get a 180 day letter once. The very act of getting the letter was terrifying.
I’m a physician and been sued as a co-defendant and later dropped and will give you my opinions/ comments:
1. Handle your guilt. My biggest strength was knowing that I did not do anything wrong (medically or ethically). If you know you did then It is MUCH harder to go through this extensive process.
2. Don’t take it personally. I know that sounds odd, but handling mine was easy Inever took it personally. Person A ended up with a real injury and was looking for compensation for said injury. Everyone gets named so it is easier to sort it out who is at fault. Lawsuits are just part of the business of practicing medicine.
3. Don’t blow up the whole incident as a condemnation of your abilities as a physician. The truth is EVERYONE makes mistakes in their jobs. The difference is ours causes serious damage to a person’s life and we live in a society that allows lawsuits to extract money for said damages. This does not mean you are a bad person or bad doctor just because you had a bad incident. Don’t let it define you as a person or physician.
4. Don’t talk to anyone about the incident or lawsuit. Not your medical partners (they will only be worried about the corporation being named), your nurses, your MA’s, your other physician, the hospital admin, and ESPECIALLY anyone else named in the suit.
5. Go through all the medical records and have a GREAT understanding on your part and everyone elses part in chronological order.
6. I disagree with the book author and think the best answers in any deposition are not medical jargon (which makes it seem toocold and distant to a jury), but common sense. Remember this is not a military court. You are not being judged by your peers, but from the common laymen (your post office worker for example). Just like in the real world of practice you should have some rational reason for doing what you are doing. If you do just explain the reasoning and why you did that and not something else.
7. Some key phrases: “I don’t remember” Nothing wrong with saying I don’t remember as the depos will be YEARS after the incident. “I don’t have an independent recollection” Don’t guess on a question if you really don’t remember as you don’t know where the trap is being layed down by opposing counsel. “My usual and customary practice” No one expects folks to document and remember EVERYTHING. If you usually do something and did not document it down in this case just say this phrase.
8. Emotionally be prepared for a LONG process. A serious lawsuit does take YEARS to settle/ trial. You have to be ready for a long haul. Someway you have to find the calm to go on with each day still giving excellent care to your patients and be a great spouse/ parent despite knowing this cloud hangs over you.
9. Do not be timid with your legal counsel. If things come up that you think would be important to “flesh” out then speak your mind. The attorneys are NOT medical experts and the medical experts on the case do not always get ALL the medical records or depositions as they come in making their opinions.
10. Examine each deposition in detail. See where your role in this whole situation and think about how you will defend your position of why you did what you did or didn’t do what you were supposed to do. Try to be the last one deposed scheduling wise. This way you get to look over the transcripts of all the other defendents AND plaintiffs. Interesting, a HUGE adv. I thought was looking over the entire deposition from the plaintiff WEEKS/ MONTHS before I gave my deposition.
11. Not sure how but try to be familiar with deposition questioning. I had oral questioning for medical school, board exams, and do treating depos. for my patients several times a year so it was a walk in the park for me. I knew exactly how to phrase each answer to predict how the next question would be phrased. In the end, I had the attorney doodling in her notepad trying to think of a new question as the depo was not going the way she wanted.
12. The other plaintiffs attorney is NOT your friend. A great move the opposing attorney came to the table during the deposition was not to be aggressive, but to be calm, passive, and looking like she wanted to help me get out of my predicament. A total trap. She wanted me to be so comfortable like I was talking to a friend that I let my guard down.
13. The depo. can be long, but you have to focus for the entire time. Do not let your frame of mind start wandering and lose focus at the question at hand. A nice trick is to ask for a bathroom break if you are not focusing.
14. When answering questions: Listen to each question carefully, ask for any clarification or reframe the question if you don’t understand, give a 2-3 second pause, then answer calmly and direct to the point. Look straight
the eyes of the attorney. It is interesting, but it is not just what you say for your answers that matter, but ALL the attorneys are gauging how credible of a witness you will make on the stand. Are you one to be liked by a jury or not. This can help or hurt you. If you are good looking this will help and if you dress poorly it will hurt.
Hope some of this info. was useful.
The author is quick to point out the difference between the deposition (where she recommends medical jargon) and the actual trial, where she recommends layman’s terms.
The random number generator chose Elliott as the winner of the book. Thanks for all the comments.
Dr. Brenner tells me the book is now in stock again on Amazon. Not any cheaper, but at least it’s available.
It’s a genius suggestion to use as much medical jargon and terminology in a deposition as possible. I can definitely see how that could throw off an opposing attorney. My brother is just finishing up his third year of medical school and will be applying for residencies soon. I think I’ll buy him this book as a graduation present!