[Editor's Note: This guest post comes from Dr. Curious, who (like many WCI readers in the last year or two) has recently started a blog about finances, early retirement, travel, and parenting called My Curiosity Lab. He is a radiologist married to a pediatrician. We have no financial relationship. Note that some details have been altered to protect patient privacy. Nothing here constitutes legal advice so, for pete’s sake, consult a lawyer if you are sued. Also keep in mind that the legal processes described may vary from state to state.]
Two days into it, and my tropical beach vacation was ruined. After listening to a voicemail from the next-door neighbor back home, my initial response was confusion: Why would a police officer be looking for me? I frantically searched my memory for something illegal I may have done. Did I forget to pay for an item on the bottom of my grocery cart? Was it something that happened in Vegas, but did not stay in Vegas?
After discussing it with my wife, it seemed the most likely scenario was likely worse: I was being served papers in a malpractice lawsuit. A few days later, after speaking to the county sheriff’s office, this fear was confirmed.
Joining the Crowd
The numbers are sobering: a 2011 NEJM study estimated that by age 65, 75% of physicians in “low-risk” specialties and 99% in high-risk specialties will face a malpractice claim. Sorry, neurosurgeons, you win the ignominious prize for “most likely to be sued,” with a staggering 19% of you facing a malpractice claim in any given year. My specialty, radiology, is just below the average annual claim rate for all physicians: 7.4%.
Doctor Curious
As fate would have it, I joined the ranks of the sued right out of the gate: while moonlighting during my fellowship. However, I did not receive notice until almost two years after the incident, conveniently just before the statute of limitations was to expire. By that point in time, I had no memory of the patient or the imaging studies involved. A few weeks later—following a review of the case with my attorney—I had a clearer understanding of events as they occurred that day.
The Case
An elderly gentleman presented to the emergency department after a fall with the primary complaint of head injury. CTs of the head and cervical spine were obtained—which I interpreted as negative for acute traumatic injury—and the patient was eventually discharged home later that same day.
Unfortunately, the patient had an unrecognized liver laceration with active hemorrhage, precipitating his return to the ED a few hours later in extremis; he died in the ICU a few days later. It was unclear whether or not the patient had signs or symptoms of abdominal trauma at his initial presentation in the ED. Regardless, the emergency physician and hospital were both named in the initial lawsuit.
How did I become entangled in this morass? Although abdominal hemorrhage was indicated as the cause of death at autopsy, a minimal amount of intracranial hemorrhage was also present. The plaintiff’s lawyer argued that, had I recognized the head bleed, the patient would have been admitted rather than discharged, resulting in earlier—and possibly life-saving—recognition and treatment of his abdominal hemorrhage.
I’ll let you chew on that logic for a bit.
After retrospective review of the head CT by me and the defense expert witness (an academic neuroradiologist), we could still not identify any intracranial hemorrhage. Most likely this represented a case of delayed intracranial hemorrhage, i.e., blood was not present yet or too subtle to visualize on initial imaging.
To summarize the remainder of the long (and mostly boring) story—which included numerous legal motions and correspondences between attorneys—the case against me was eventually dismissed.
Lessons Learned
What did I take away from this experience?
# 1 Before anything else, call your malpractice insurance provider.
Your guide and protector is the lawyer assigned to you by your malpractice insurance. Any and all communication with the plaintiff’s side should be done via him or her.
Did you receive a letter, email, or phone call regarding the case? Let your lawyer know ASAP. It may be a cliche to “lawyer up,” but it protects you from a potential costly slip-up and, as a bonus, allows you to live your life while the wheels of justice turn in the background.
[Technically, the attorney is the insurance company's attorney, whose job is to protect the insurance company, not you, even if your interests are usually aligned. But that's the beautiful thing, for at least the first million (which is almost always the last million too) you're not on the hook at all, the insurance company is! As a general rule, malpractice suits aren't actually about you at all, they're about a potential transfer of money from an insurance company to a patient. So try not to let it ruin your life.-ed]
# 2 If you have a choice, opt for occurrence over claims-made.
A full discussion of these two rather opaque terms is beyond the scope of this post (and my knowledge level). You can think of occurrence policies as “permanent,” meaning you are covered for any incident during your coverage period, even if the lawsuit is filed after the coverage period. Claims-made policies only cover you if the lawsuit is filed during the coverage period; if you want to be covered after that, it will mean purchasing extra “tail” coverage. As you might imagine, occurrence policies are more expensive than claims-made, and have become increasingly difficult to obtain.
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The majority of physician practices and academic institutions provide malpractice insurance, so the choice is generally out of your hands. I have never had a choice in policy, but was lucky to have occurrence in this case.
# 3 Keep copies of malpractice insurance policies from prior jobs.
In the event of a lawsuit, you don’t need the extra stress of scrambling to find your old insurer. You should hold on to these for a time equal to at least the length of the medical malpractice statute of limitations in your state.
# 4 Don’t expect solid logic or reasoning.
When I read the plaintiff’s expert witness testimony, I was flabbergasted. First, he was not a radiologist, which troubled me given he was criticizing a CT interpretation. He alleged that I incorrectly read the head CT as negative, and argued in a circuitous explanation that my error resulted in the patient being discharged and later dying from abdominal hemorrhage. His own interpretation of the head CT—including mention of the supposed intracranial hemorrhage—was glaringly absent.
Suffice to say, I had issues with this logic. I don’t know how typical my experience was, but I was disappointed by the vague and selective nature of the testimony.
# 5 To be served is not necessarily to be sued.
Writs, Complaints, and Praecipes, oh my. During the course of a lawsuit, you will expand your legal vocabulary. In my case, a Writ of Summons was initially filed with the county; this essentially tells the defendant: “I’m fixin’ to sue you.” The next step would have been to file a legal Complaint and, eventually, either go to trial or settle the lawsuit.
Fortunately, a Complaint was never filed against me. After months in limbo, a “Praecipe to Enter Default Judgment/Non Pros” was filed on my behalf. A Praecipe is an order to produce a legal document, i.e., the Complaint. Non Pros means a judgement in favor of the defendant when the plaintiff has not continued his action. In essence, my lawyer was telling the plaintiff’s lawyer to “sh*t or get off the pot,” as Grandma used to say.
The case was dismissed a few days later.
# 6 Don’t hold your breath.
My case spanned 9 months from Writ of Summons to dismissal, with nothing happening (from my perspective) during much of that time. My involvement over that period consisted of an initial two-hour meeting with my lawyer, an occasional short phone call, and about a dozen email exchanges. The bulk of the work was done by my lawyer and his firm behind the scenes, without my direct knowledge.
# 7 You + Your Lawyer 4EVA.
Your lawyer will always be there for you, in a legal sense. He or she is your go-to resource should questions related to your case arise in the future.
Remember that question on state licensing applications asking if you have ever been the subject of a civil malpractice lawsuit? I felt a simple “no” was not quite correct in my case, but was unsure of what to say. A quick call to my lawyer cleared things up in a few minutes.
Into the Sunset
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Although not without occasional stress and anxiety, I emerged relatively unscathed from my brush with the medical malpractice world. I sincerely hope that none of you have the occasion to meet your malpractice insurance lawyer. I also hope for world peace. A more realistic hope might be that, if one day a police officer knocks on your door with letter in hand, you will have a better idea of what lies ahead.
[Editor's Note: There are pluses and minuses to becoming acquainted with the malpractice world early in your career. I received a notice of claim from both my first month of residency and my second. Although neither claim had any merit, I learned an awful lot about malpractice defense, asset protection, defensive charting, and defensive medicine very early in my career. I'm sure there are some scars though. I probably trust patients less than I did when I started internship. I probably chart more. I might even order more tests than I otherwise would. Maybe I even focus on finances more than I otherwise would have. Maybe in some way those suits led to the creation of WCI….]
What do you think? Have you had a brush with the malpractice system? What was it like? Any tips for those in the process now? Comment below!
“Remember that question on state licensing applications asking if you have ever been the subject of a civil malpractice lawsuit? I felt a simple “no” was not quite correct in my case, but was unsure of what to say. A quick call to my lawyer cleared things up in a few minutes.”
So what is the correct answer to this question in your case?
I’d love to see this truly important point flushed out more.
I, along with several surgeons, were originally named in a lawsuit. While the lawsuit is ongoing, all of the named parties were dropped from the complaint, while the hospital remains named.
I’m not sure how to answer that question either. More frustrating, calls to my state medical board have not helped clear this up either.
Ask your malpractice carrier to word the exact answer.
My lawyer seemed to think it was a bit of gray area regarding reporting to the state licensing board, but he recommended erring on the side of disclosure. He wrote a short letter including the following language, which I forwarded to the state to accompany my “yes” answer:
“…Plaintiff’s counsel initial the lawsuit by the filing of a Writ of Summons. However, Plaintiffs attorney failed to file a complain against Dr. Curious and therefore, a Judgement of Non Pros (as explained above) was entered..”
I don’t know if this kind of thing can vary by state, but hopefully your lawyer would.
One thing that has worked for our group is to attend the malpractice seminar that the malpractice company puts on. They are really informative. Furthermore, we get a 5 to 10 percent discount on our malpractice insurance for attending. In the dialysis world, we study the malpractice cases of other nephrologists, which has also been helpful. The documentation concept is paramount, however, in that an ounce of prevention worth a lot more in cure.
Dr Curious you did not go very far in the world of medical malpractice horror. I am an OB/GYN who has been all the way through a trial. It is absolutely one of if not the worst experiences of my life. It takes years of your time, costs lots of money in lost office time, and is a huge psychological hit. My advice is to chart defensively, write good notes if something bad happens, be as nice as you can be, and when you are financially independent quit doing the stuff likely to get you sued. In my case I dictated a strong delivery note immediately, I followed ACOG guidelines, but I still got sued. The jury was out 10 minutes. They found in my favor but it was a 5 year ordeal for me.
Sorry to hear about your experience, Hatton1. It seems all too common. I am somewhere in the middle of the malpractice risk spectrum, but I feel for the neurosurgeons and OB/GYNs at the higher risk end.
One of my colleagues was named in a lawsuit and was advised by his malpractice attorney that they could likely win if it went to trial. However, the case was not so clear-cut as it sounds like yours was. In the end, he opted to settle given the time, energy, and stress that he anticipated over the next several years. I’m not sure what I would do presented with a similar situation.
I think a lot of the advice to settle a case depends on the “culture” of your malpractice carrier. My carrier has a reputation of not settling anything except egregious cases. Although it is hard to go through a trial this keeps the number of stupid cases from proceeding. I sit on a committee for the carrier that gives input as to whether to settle or defend. The usual recommendation is to defend.
I’m often surprised by physicians’ reluctance to settle cases. A single lawsuit certainly doesn’t prevent you from getting on a medical staff. Presumably you’d settle it for less than policy limits, so it won’t cost you a single dime and in fact will likely GAIN you money in saved time and hassle and stress. Maybe it’s just the “I didn’t do anything wrong so I’m not settling” attitude, but that’s making it personal and it’s only personal to one person involved in that lawsuit. For every one else, it’s business.
WCI, don’t you think that settling a totally bogus claim encourages more bogus claims in the future?
Of course it does, without a doubt.
Are you willing to spend 5 years of sleepless nights and lose thousands of dollars in order to discourage bogus claims? I’m not. It’s a cost of doing business. I’d rather have those five years and thousands of dollars back than have a jury agree with me that I’m right.
Every physician should be aware of the following which has the potential to cost you more than any settlement or judgment: Every mortgage application asks “are you party to a lawsuit?” If you answer yes to this question he will either be denied the mortgage or offered one with and exorbitant rate. As the legal process can drag on and on, a single lawsuit can effectively prevent you from purchasing or refinancing a home for quite some time. My advice: if you are not currently “party to a lawsuit” and have a mortgage application in your future, don’t wait!
We almost lost our house over this very issue – mortgage lender nearly backed out because of pending lawsuit despite 50% down payment and excellent credit rating. My experience was more like Hatton1 – a perfect storm of low points (buying first home, kid #2 on the way) with years to conclude (eventually dismissed), longer to recover the joy in working. Ultimately came around to WCI’s point of view stated above: it’s not personal, it’s business.
Soul-crushing business, but business all the same.
It doesn’t make a whole lot of sense. Take the worst case scenario where you lose a settlement/judgement that exceeds your malpractice coverage and are forced to sell your home to cover it. My understanding is the bank as the primary lienholder still gets paid first before the plaintiff. So where’s the extra risk to them?
Are you psychic? I applied for a mortgage earlier this week!
I am still in the midst of the paperwork but I don’t remember a question about a lawsuit. I will take your word that it is there, and avoid lawsuits in the meantime.
“Technically, the attorney is the insurance company’s attorney, whose job is to protect the insurance company, not you, even if your interests are usually aligned. But that’s the beautiful thing, for at least the first million (which is almost always the last million too) you’re not on the hook at all, the insurance company is! As a general rule, malpractice suits aren’t actually about you at all, they’re about a potential transfer of money from an insurance company to a patient. So try not to let it ruin your life.-ed”
I believe this might not be true. In cases where you might be right and want to pursue the case to have an judgement in your favor, the insurance company might want to settle, to save on legal expenses. When they settle, they will settle with “no admit of guilt but settled” which is totally different than “found not guilty”.
Your malpractrice contract should specify this, ie: if you have right to pursue your own lawyer and carry on the case or do they have the absolute right to decide what they want to do with the case.
Technically, the attorney is the insurance company’s attorney, whose job is to protect the insurance company, not you, even if your interests are usually aligned.
Nope, this is flat out wrong. The editor should not have added this. The defense lawyer represents the client, and only the client. Even though the carrier pays the bills.
(I do med mal for a living from the plaintiff’s side.)
Turk, I can see how should be true in principle, but I can imagine quite a conflict of interest. A medical malpractice defense lawyer must feel some loyalty, either explicit or implicit, to the insurance carrier. They are who pays the bills, no?
Who’s going to hire the medical malpractice attorney next time? The insurance company or the individual doctor defendant?
If that particular doctor is hiring the med mal defense guy multiple times, then the doc either has quite a string of bad luck or might be practicing bad medicine. Either way, the insurance companies are going to be writing your paychecks for a long time to come. It’s very hard not to conduct yourself in a way that makes your insurance company paymasters reasonably happy.
My observation is that the quality of attorney that does med-mal defense is superb. The amount of medicine these people (experienced ones) know is amazing. If the case is heading for trial I never felt like the attorneys were cutting corners to save money for the insurance company. It is a totally different experience from giving a depo to a car wreck attorney.
I’ll second that and add to it. I’ve also been impressed with the attorneys from the more reputable plaintiff’s attorney firms. Talk to one some time and you’ll realize how many dumb suits don’t happen.
Yes, but it’s a somewhat similar situation to hiring a realtor. While the realtor is technically your (i.e. the buyer’s) realtor, the realtor only gets paid if there is a sale and is paid by the seller.
It would be better if the defendant could rely both on a code of ethics AND on aligned incentives. And if the contract doesn’t specify that the doc/defendant has to approve a settlement, it’s even worse.
Yes, it’s important to read the contract and know what it says.
Thanks for sharing.
I had the unnerving experience of being served at work (VA). Amusing because the suit was not medical- for my medical care- but separately for my Comp and benefit eval of a patient- claimed I should pay a small claims court amount for stating 0% vs 30% disabled from a military injury. (Of course the amount was way below what s/he actually lost by not getting the 30%, but probably no firm would take the case- s/he selffiled it small claims. The US fed attorney who I gather does all VA cases assured me it would be dismissed once he discussed it with the local court, but he got busy and didn’t get it dismissed until after I’d received a court summons! Wouldn’t have been a malpr claim had I lost, apparently. Weird.
Now (or a year+ ago) received notice of my only other claim, also VA: no further word so I don’t know what’s up. If it’s the case I think I’m pretty peripheral and only ponder ‘is it the case I think it is? Wonder if s/he is dead?’ Wonder if I’ll get any f/u ‘you’re dismissed’ or ‘case closed’ if I’m not about to be subject to NPDB reporting (think the notice promised to let me know if THAT happens).
Being FI and mostly retired the whole issue (as well as, in the stock market collapse ’02 timeframe, paying 3 times the tail I’d budgeted for/ been quoted earlier after a one year claims policy) makes me very leery of jeopardizing my mental health and financial security by working at all, especially not at a non FTCA covered clinic or one (most private clinics) without occurrence policies. Being unlikely to work another 5 years same place/ policy makes it unlikely I’ll get the retirement tail coverage most docs who haven’t traveled 25 years with the military will get.
As I’ve qvetched in the past, if one’s auto insurance quadruples for any reason one can in theory stop driving and avoid that cost. How does one stop having provided medical care last year if the price for one’s tail coverage suddenly becomes ‘unaffordable’? Absolutely unfair and makes malpr coverage not a true insurance at all.
One of the worst parts (among many unpleasant ones) of my experience was the waiting game between being served and finally learning what the hell actually happened to precipitate the lawsuit. I don’t perseverate on it at work, but I realize that each and every case I read could be “the big one.” I’m 5-10 years from FI, but retirement will be mighty tempting when I hit that point.
If you have employer-provided malpractice insurance, make sure there is a CONSENT TO SETTLE clause. I have been involved in one lawsuit–for being the physician on call who gave the order to send someone out from a facility to the hospital on a weekend. Since it was my first weekend on call for this facility, I deferred the decision to my regional Medical Director who ordered transport by private ambulance to our sending facility, rather than 911 transport to a facility 30 minutes closer. When the patient expired of her underlying condition two days later, the family decided that 911 transport to a closer hospital would have saved her life. The resultant lawsuit dragged on over four years. One day, I got an email that simply stated, “This suit has been settled. Thank you for your time.” I called the attorney, she stated “the parties settled” and that was that. In speaking with someone else about it, I was asked if I had a “consent to settle” clause in my contract and that I would have had to give written permission to settle the case beforehand instead of the institution just making that decision for me without my knowledge.
Another red flag: I was the first deposed and, when I walked into the conference room to meet the attorney, was told ‘we don’t do Med Mal, this is our first Med Mal case, we’re just the corporate atty for your facility.’ I should have stood up and walked right out and demanded proper Med Mal representation but I was nervous and green and didn’t know any better. Make sure your employer is not using just any atty to represent you!
That’s some great advice, and most of it is news to me. I will have to check my practice’s malpractice policy for the “CONSENT TO SETTLE” language.
In my own anecdotal experience and what I have heard from other’s malpractice lawsuits, it seems that much comes down to luck: you just happened to be the one on call when the “walking lawsuit” shows up in the ED, or your attorney is not up to snuff for whatever reason. Once I came to accept this, it made my daily work much less anxious. I’m still at the same risk for a malpractice lawsuit as I was before, but it sure feels a lot better.
“Another red flag: I was the first deposed and, when I walked into the conference room to meet the attorney, was told ‘we don’t do Med Mal, this is our first Med Mal case, we’re just the corporate atty for your facility.”
good god did that really happen? i would have lost my sh*t and refused to do the dep
Yes, the next case that came around a few years later was assigned to a proper Med Mal atty, who told me, “Don’t worry about it, I’m going to make this go away.” Sure enough it did, never heard anything more about it. I guess the institution learned its lesson by using a corporate atty for Med Mal! But unfortunately the providers who were caught up in it are the ones who suffered.
Welcome to the club. It’s hard not to let it stress you out, even the casss that will surely be dismissed. Just do the right thing for your patients and hopefully you will never get sued…but amongst all else make sure to have tail coverage.
I do try not to think “how could I get sued for this” when making medical decisions, but I would be lying if I said I NEVER think about it.
Tail coverage to cover you tail! Don’t know why I never made the connection 🙂
I have not joined this club yet, but the odds are against me. It is a good reminder to document well. In my case, being nice to the patient/family and communicating well with them is the easiest way to prevent a lawsuit, however as a radiologist reading images in another room you unfortunately don’t have that opportunity.
Being nice doesn’t prevent lawsuits. I wish it did!
Here’s to never joining the club, Rogue Dad!
Many people don’t even know that a radiologist is a doctor, let alone what we do. From a patient-plaintiff’s point of view, it must seem like some faceless idiot was careless and made a mistake. I want to be an idiot with a face!
Actually, there is lots of data that being nice does prevent lawsuits. (see research from Gerald Hickson, a pediatrician at Vanderbilt who has made a career of this). It doesn’t prevent ALL lawsuits, but does significantly reduce the risk.
Jeff — I echo what Echo said. Good bedside manner and communication systems that promote respectful ways to disclose errors HAVE been shown to reduce malpractice suits. That’s the one thing our risk management people preach to us.
One principle I teach our orthopedic surgery residents to prevent malpractice, “when you sense trouble with a patient run towards it.”
Interesting and noble thought. I’m not gonna lie: when I hear a code blue, I usually run the other way!
i love that and am going to steal it.
i have a dot phrase for AMA that i have been complimented on before that includes a line about what i did to try to make sure pts got care.
interesting transition over the course of my career from “you want to leave? good luck” to more of a “can i give you my biz card and ask you to see me tomorrow?” i’m in EM so handing out biz cards isn’t typical 🙂
MPMD — I don’t carry business cards, but I agree w/the idea — every AMA patient I still try to make sure they have a plan for what to do when they leave. Idk if that’s considered enabling, but in my world since it’s mostly parents walking out w/their kids (and parents driving the decision to leave), I think it’s quite easy to justify providing the advice as a service to the patient, regardless of the motivation of the parent.
Another overlooked scenario is serving as a medical director of a facility. Many physicians take on this role but be aware that you could be held responsible for things outside your direct patient work like training of employees, compliance, privacy procedures, bad employee behavior, etc. I recently looked into this issue because of our insurance carrier’s CME module and I got our carrier to add an addendum in writing that covers our group’s medical directors.
From that description, a medical director can combine the worst parts of medicine with the worst parts of management. Sign me up!
As an OB-Gyn, I find it extremely disheartening. For example, any vaginal delivery could be a potential shoulder dystocia and if I get sued for it and fight it and lose, I could potentially lose everything that I worked for if the jury were to award a multi-million dollar award. I frequently ponder this as I work late into the night and on weekends. Was it really worth it for me to spend so much time away from my wife and children? I didn’t go into medicine for the money, but I find myself getting less enthusiastic about my profession.
I tend to lose sight of the risk in my day-to-day work, but I know any case I read is a ticking time bomb of lawsuit potential. If I were to constantly remind myself of this, I would go crazy. Although it happens to most doctors at least once in the course of their careers, it is thankfully a rare occurrence for any given doctor.
this is the absolute worst thing about our med mal system and the part that is impossible to quantify.
those who don’t believe in tort reform trot out studies attempting to show that med mal doesn’t affect physician practice. but to me that’s like asking a very religious person a question like “to what extent does your religion affect your marriage.” it’s asking someone to quantify the effect of one constant and unchanging factor on one of the biggest things they do with their time.
Those people are nuts. Its easy to see. You lose trust, cut out what you can get away with as far as pts/procedures, and do think about what you’re willing to risk. Unfortunately we are not getting much less litigious as a society.
the poorest of pts and especially Medicaid pts are the most likely to sue
does an umbrella policy cover anything in a suit if you had limits on insurance liability; guess not
Umbrella does not cover professional liability claims.
It’s possible to do everything perfectly but get thrown under the bus by a colleague. I’m in a suit now where I read a Ct brain perfectly well but another rad said the next day “stable infarct” when it had 24 hours to evolve and manifest itself amongst the chronic ischemic shayt these chronic patients have in their skulls from years of not doing jack for their own health. Yippee doo. Lawyer said, its about them trying to convince a jury to give the plaintiff money, not about your sklll set or competence.
Actually, Medicaid patients are not only less likely to sue, but they get less jury reward with equivalent injuries.
McClellan FM, et al. Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency. Clin Orthop Relat Res. 2012; 470: 1393-1397.
That’s interesting. I’ve always heard Medicaid patients sue more but when I think about it, I don’t think that’s based on any data at all. Great paper. Kudos to you for having read it and McClellan et al for writing it.
I have heard it frequently in the past, and a few times in the comments. When people say “document well”, what exactly does that mean?
How does that protect you in a lawsuit? Do any of the more seasoned docs have any advice about that? Things to do in particular? I have heard that “informed consent” does not actually prevent you in a lawsuit if something bad happens.
Are there any good resources for learning about ways to prevent a lawsuit? Like financial topics, I feel like docs in general don’t talk about this topic enough and it is somewhat taboo to ask about.
Gregory L. Henry has done some work in this area. I listened to a few EM audiodigest lectures by him years ago and he’s a pretty entertaining speaker. Apparently, he has published some books too.
to me this means the following
(full disclosure i do some case review and also have been complimented on my charting by others who do quality/legal work)
1. document your thought process in clear prose such that another doc can read it and know exactly what you are thinking.
good: i do not think this pt has an acute appy because – no rosvings, min ttp rlq, improved w/ fluids, no wbc count. i have discussed these findings with them and they are in agreement with no CT at this time, will return to ED in 12 hours for re-exam if not better
bad: pain improved, dc
2. document quotes from pt and family i.e. “i know this isn’t my heart” or “i really don’t want to stay in the hospital” or “the nurse is a b*tch.”
3. comment specifically on abnormal VS
4. i actually like to address stuff head on and will often write things like “when you read the triage note in case that says ‘severe HA and almost passed out’ it sounds like this is an acute SAH but what i am actually seeing is a well appearing pt who has a migraine and was pretty clearly dehydrated.” that could take quite a bit of wind out the sails of someone coming after you. an incorrect judgement is WAY easier to defend than a chart that makes it look like you blew something off.
i could go on, but these are blog comments
I love #2 and #4
I write down pt comments verbatim all the time, it’s amazing how quiet the pt gets after they ask “What is all that stuff you are writing down? Why are you typing so fast?” When I explain “I’m writing down everything you are saying to me word for word so in the future anyone can read this and know exactly what you said today” they realize they have to own their words!
Likewise #4–my objective opinions still have to count for something, right? So the pt with back pain gets “normal gait without difficulty ambulating, gets on and off exam table without difficulty, moves limbs freely during exam, no appearance of pain, pt is laughing and talking animatedly during visit,” etc. I also like to throw in “observed walking down hall and out of clinic without difficulty” in cases where they have an “exam room limp.” My nurses are quick to tell me when pt behavior differs from waiting room to exam room and this is documented as well.
not only do your opinions count but
a. a note like this makes it harder for a plaintiff’s expert to dissect your care. they are basically left with “well Dr. NJFP should have made the correct dx/done this alternate rx” which is totally obvious but there isn’t much room to speculate about what a dumbass you were.
b. yeah what you write in the chart is never going to be called into question on a factual basis. the only time this can get you is if there is a disagreement e.g. RN writes “pt unable to walk” and you write “ambulating normally.” it isn’t like they’ll come and say “you were lying about the ability to walk right?” they’ll just say that you didn’t reassess etc
c. this is why verbatim comments are so helpful and why it’s so protective to quote patients when they say stuff like “i think i’m fine i want to go home.”
side note: i would stop charting in rooms and stop telling pts you are writing down everything they say. that is a really weird thing to do and i think you would find you are in the tiny minority of docs with a phrase like that. it violates rules #1 of staying out of court which is: have patients like you.
Except that I work in the extremely litigious field of Correctional Medicine, my patients all have free lawyers and a lot of time on their hands to think about how to get something out of the system. Often verbal comments are made with the intent of intimidation/manipulation, we are advised to write verbatim what patients say to us because they will lie about it later. Likewise, having a nurse witness encounters and documenting their presence can be protective. If anything, working with inmates has really upped my documentation game! I often read back to them what they have said also, so they can hear how it sounds, sometimes this even makes them try to retract it!
Basically we are all supposed to document all the time right? What I mean is if you know something bad has happened go the extra mile. In my particular case it was a shoulder dystocia with a subsequent Erbs Palsy that did not resolve. Every Ob knows a shoulder dystocia can result in lots of long term problems and frequently gets you sued. I immediately dictated a detailed delivery note including times and maneuvers to achieve the delivery. The baby presented itself oddly and I dictated about this also. The note was timely. This is very important if you get sued. It also is important to be nice to the nursing staff involved in the event because they will testify if it goes to trial. If you are in any way something other than nice and empathetic to the family it will also haunt you. The details of the note helped me immensely in my trial.
from what you typed here is sounds like your documentation made you look like a careful OB who provided standard of care but had a bad outcome.
sure you can lose your shirt on that but it makes the plaintiff’s attorney’s job a helluva lot harder.
Yeah the plaintiff wanted $2.5 mill. The point is if you know you have a bad outcome please write a detailed note so you remember it 5 years later.
Are there cases where you as the MD want to settle and the insurance carrier wants to take it to trial (the opposite scenario thAt many hve posed above)? My assumption is if the case in discovery is leaning against the MD it’s better to settle? My assumption is also that settlement is usually within insurance limits (so personal assets are not affected)? If it’s only your first or second settlement it should not affect credentialling or licensing I hope? At what point are you considered high risk for a malpractice inssurance provider?
Good questions. Regarding the choice whether to settle or not, I believe is that it is ultimately up to the defendant. Your lawyer will of course counsel you to choose one or the other.
Any taker for the other questions?
sure there are.
hospitals want to keep plaintiff attorneys honest, if they think they can win they will sometimes push for trial.
i think we as docs tend to over-estimate the validity of the average med mal case. Rob Orman had a great interview on recent ER Cast about a crazy lawsuit, worth listening to.
a great thing to read on this is “Legal Briefs” in the journal Pediatric Emergency Care. it’s mostly focused on peds but gives short blurbs/discussions on cases that settled or went to trial. you can see the kind of cases that lose at trial, they tend to be pretty horrific.
Depends on the policy. See discussion above about “consent to settle clause.”
as far as credentialing and insurability goes, i think you would need to demonstrate a pattern of bad care.
even one case every 8-10 years probably wouldn’t do it.
i have a little letter from an attorney about a case i was sued on as a resident, i just attach it to my credentialing stuff and have never had any issue.
every hospital in america understands that med mal is part of the game and that even a great doc can make a judgement error. my hospital system recently had a massive judgement against one of their docs at trial and not only is the doc still working but the hospital supports them 100%.
I can empathize. I’ve been named and dropped in 3 lawsuits and been in practice 10 years. 1 suit was a patient who had an OR event that was admitted to me. Since I was the admitting MD I was named, and later dropped. 1 suit was a patient who had an adverse event well before my involvement but because I was the discharging MD so I was named and later dropped. The third suit was a very sick patient who lived but had morbidity. The case was settled after dragging on for years with no part going to me and the hospital took responsibility. Here are some observations I’ve had as a hospital employed physician from these suits and my discussions with risk managment and my laywer:
1. Anyone can sue you for anything. (duh, right?) I’ve had many colleagues with their first lawsuit for something silly.
2. Once you are named you must list that suit on EVERY malpractice app, credentialing privileging, etc, etc application
3. The major key (especially when a hospital is involved) is getting yourself dropped since the hospital has deeper pockets. As a corollary, if there’s a settlement you want the monetary portion to you to be zero. If there is monetary attribution your name goes to the National Practioner Data Bank.
4. Being named in suits doesn’t affect your ability to be insured. Even having some monetary attribution to yourself doesn’t. However, multiple monetary attributions to yourself can make you more difficult to insure.
5. The actions are often driven by the lawyers and not the patients or their families. I had one family member who was suing me who I would run into in a coffee shop by the hospital and would proudly tell his friends, “that’s my doctor” (I wonder if he even knew he was suing me among the list of names….)
6. The goal for the lawyers is to avoid going to trial since it’s a big risk and you could lose a lot more by settling. When you have an injured person the juries feel that they deserve SOMETHING which can lead to a judgement even if you did nothing wrong.
7. If you’re hospital based, make sure you have a good reputation with your medical leadership since they can go to bat for you with your insurance company (who decides the settlements).
8. Don’t take it personally (it’s hard not too).
Great advice here! Number 8 is especially important in my opinion. Medical malpractice is business as usual for the lawyers involved (and sometimes sadly for the patients). I took heart in the fact that my lawyer had done this hundreds of times!
Impossible not to take it personally. Most MDs on trial fantasize about killing the plaintiff attorney. I have heard this from several people not just me. It is very personal.
I agree. The one case where I took care of the patient and they had some morbidity involved a balls to the wall tour de force of critical care. I spent hours at the bedside. To my eye the patient was luck to be alive. However, the family saw it differently and sued. The case dragged on for a several years. While its impossible not to take something like that personally, I think if can’t move on then you’ll end up scarred and affect your ability to practice.
My first and only deposition was so horrible I routinely relished the thought of the plaintiff’s attorney dying some horrific death, such as being burned alive while pinned in a car. In my fantasy, I sat very nearby on a park bench, enjoying my sandwich and toasting him with a glass of champagne, as I continued nonchalantly reading the paper, completely able to help but also completely unwilling, and smugly relishing at his violent and painful demise. Good riddance!
To this day I despise ALL malpractice plaintiff attorneys and hope them the absolute worse. I view ALL of them as sleazy unethical organized criminals if not downright terrorists. They’ll get their comeuppance.
your challenge in the future is not to hate them but to learn to deal with/mess with them.
if you go into deps angry already pissed at the plaintiff’s attorney they have a huge advantage over you.
remember that the goal in a deposition is to be honest but not forthcoming and in some ways my goal is to have the plaintiff’s attorney hate ME.
avoid saying anything definitive, take long pauses, give absurdly short answers etc.
PA: would you say that groin pain and acute vomiting are suggestive of testicular torsion?
MPMD: testicular torsion is a complex diagnosis that can present in various ways
PA: so isn’t it the case that your patient had all the classic signs of an acute MI?
MPMD: there is no such thing
PA: don’t you agree that this patient should have been admitted to the hospital
MPMD: no
PA: you don’t agree
MPMD: i don’t agree with you
etc etc
But the less personally you can take it, and the more you realize it’s about money not your competence for everyone else in the picture, the easier your life will be for the next 1-5 years!
OP some enterprising doc could write a coffee table book of crazy plaintiff expert stuff.
my favorite so far in my career was a suit against EM/IM/CCM docs for a dude who died of a severe PNA within about 18 hours of admit. guy got appropriate abx, fluids, O2. upgraded to ICU when he got worse and got frankly impressive and thoughtful critical care but rapidly went into shock and MSOF.
plaintiff expert was an outpt doc who sort of did pulm (no fellowship but had done some kind of thoracic pathology certificate as a resident). claimed that everyone (including EM doc) was negligent for not performing bronchoscopy… on a pt in 4 pressor shock… on 100% fio2 and PEEP of 20.
That would be a disheartening yet entertaining coffee table book!
It surprised me that the plaintiff’s expert witness was not a radiologist (he was EM). I would think to be an “expert” in something you should have specifically trained to do it. I suspect that if the case actually went to trial, they would have to get a radiologist’s testimony on a CT interpretation.
ha!
that just goes to show you how the med mal world operates.
one of the things you learn quickly is that lawyers just don’t talk the way doctors talk and they are not going for truth but as my friend puts it going for “what they can get 9 people who couldn’t get out of jury duty to believe.”
by the way, IN does this right: https://www.ismanet.org/pdf/legal/Overview_Med_Mal_Act_summary.pdf
your case has to get by a 3 doc panel, at least 2 of which must be from your specialty.
This stuff is pretty bad really. I had an expert in my field who claimed to be a thought leader basically, but of course in reality was nothing of the sort. The firm never deposed him even. Then after several failed attempts at settlement (totally frivolous suit) got the trial pushed over a year out because they were in trial already those dates (known in advance a year ahead of time).
Most of the time lawyers are looking for docs to simply cave and get a quick check. It costs them almost nothing to send a complaint and demand letter. Even to officially file runs around 50 bucks. If they get quick settlements, its absolutely worth it for them.
It would be great if there was some sort of quality control on suits like a panel, the truth is the patient is just the medium they use to get money from the insurance company, and if a lawyer is telling them to try they believe their case has merit.
In our state it goes to a panel, but it isn’t mandatory to pass it in order to go to suit. But it gives the attorney a pretty good idea that it isn’t going to win in court so it does stop a fair number of bad suits.
That is a requirement in some states. The plaintiff’s witness must be the same specialty as the defendant.
And we wonder why our system has such high costs? Now doctors who make a lot of mistakes need their licenses pulled, simple mistakes need correction and making those effected as whole as possible.
Good article! Love reading your posts and those of your guests. Even though I’m not a physician, much of the content is still applicable to me as a higher-paid professional. I have to say, WCI/PoF are on the “top five” go-to financial blogs for me. Keep up the good work!
I actually think this is a somewhat complicated topic. I agree with the implication in this post that there is far too much “ambulance chasing” in medical malpractice cases. Too many people tend to see the tort system as sort of the lottery, and the immense personal impact it can have on an innocent physician’s end doesn’t get talked about enough. Kudos for bringing it up.
At the same time, it’s also important to remember that medical malpractice really does occur – maybe not as often as the plantiff’s bar thinks, but often enough where having a tort system is truly necessary. I am unfortunately one of those cases. I used to be one of the people who would roll their eyes when I heard about these crazy tort suits, where people would get millions for spilling hot coffee on themselves or some similar nonsense.
But then, a few years ago I had sustained some serious internal injuries from the carelessness of a local surgeon during what was supposed to be “minor” surgery, and because of that medical error – and the absence of a reasonable level of followup investigation that would likely have mitigated the damage – I now have a lifelong medical condition that requires constant monitoring and periodic followup procedures to correct. Forever.
Yes, I ended up settling my lawsuit for the physician’s policy limits. And yes, it was a lot of money. But at the same time, I also have bad memories of the sheer terror my family went through when all of this occurred. I remember my wife telling me how my second surgeon – the one that actually went through and corrected all of the damage that first surgeon had done – had emerged visibly shaken from that surgery, and had basically told my wife that he was taking over my care from that point from this other doctor. I remember the look of terror on my kids’ faces when they saw their Dad go from such a strong person to this weak, bedridden mess, and they couldn’t understand why or if/when it was ever going to end. And for my part, I remember the pain – during the recovery period of both surgeries, along with during and after more followup medical procedures that I can even remember.
Was it worth it? Honestly – no, it wasn’t. You can call BS on that if you want, and to be honest I would probably call BS on it as well if I were you. But it’s true. I would give all that money back in a second if it meant not having to go through that. I actually began the lawsuit as way of getting revenge on the person who had done all this to me, and who didn’t have the decency to make the time to figure out why my I wasn’t recovering from the surgery. I honestly didn’t expect to get this kind of money. But now that I have it – it doesn’t make me feel any better about it. Still sucks. And the surgeon is still practicing out there somewhere, which for me is the worst part of this.
One way to address the concerns in this post is to figure out a way to limit some of the frivolous lawsuits other commenters have mentioned, while at the same time reserving the tort system as an avenue for cases where people really do need to be compensated for someone’s carelessness or negligence. I think having solid, independent doctors – a group credentialed and well-respected in the field involved in the tort case – review the case material first to see if the claim has a reasonable level of merit may be a good first step. I believe my state has that requirement, which I think would help prevent some of the “my expert vs your expert” issues that have been identified by other commenters. In my case, my second surgeon was one of the people that provided backup for my lawsuit – yes, he was that upset at it – which was helpful.
I also think that perhaps better “internal policing” among the physician community would be helpful as well. In my case, we learned later that this surgeon apparently has a long history of lawsuits, and has not been able to hold a steady job for more than 2-3 years at a time before leaving “by agreement” with his employer, almost always after being sued. It’s not clear to me as a patient how to prevent ending up with physicians like that, or even if it’s possible for me to do so. I do think, however, that physicians like that make the tort system worse for everyone – it’s those people that drive the need for it in the first place. Figuring out some way, as a physician community, to identify and weed out the true “bad apples” would at a minimum make it easier to justify the need for reform of the tort system, which seems like it would help relieve some of the spillover pressure on innocent physicians discussed in this post.
We do need a tort system for exactly that kind of reason. Its that we need less people that try to game it for fee collection, which is actually not the patients that initiate the behavior, its the attorneys. Now yes, patients are surely more litigious but its because the attorneys have pushed it so much.
There needs to be some sort of panel and realistic discussion after discovery that truly limits these taking years to resolve themselves and is incredibly up front to plaintiffs about their realistic chances as they do not understand whats going on and the attorneys will use them as a lottery ticket, there is no accountability on their end.
Physicians unfortunately are not the people doing the policing and have little say. Since most docs are employees it is the corporate overlord of medical practice that needs to do the policing better. However, given the obvious conflicts of interest it does not seem that will change any time soon. Hospitals would rather rid themselves of someone without bad press or notifying the next system of any issues. Its terrible.
Oh, if you want a solution to the problem, the best is probably a “no-fault” system where people who have actually been hurt are compensated and nobody gets drug through the ringer for five years. In addition, figuring out a way for state medical boards to police the profession in a fair way would also improve things.
Most plaintiffs feel exactly like you do and most doctors feel exactly like your surgeon did. That’s why these cases end up in court.
The doctors policing doctors does occur but isn’t terribly effective. Have you ever had to make a decision about someone else’s career that would not only negative 15 years of education and training they did but also consign them to the poorhouse? Especially when it’s a gray area as it usually is.
Sad thing is that all of us who are attendings who are posting know damned well that we have worked with completely incompetent docs and not said a damned word.
We want a system other than med mal to police our behavior/skill but we are unwilling to report colleagues for the most part.
The level of incompetence a doc has to display to be fired would absolutely curl the hair of the lay public.
It’s more complicated than that. As an employer of other physicians and having served on the MEC of two different hospitals, you can’t fire someone/take a license/remove privileges for hearsay or you’re exposed to a suit (and will likely lose.) You need a well-documented pattern to ruin someone’s career and have it hold up in court. That takes a lot of time and effort and multiple people have to be harmed before anything can happen.
oh i realize that/agree with it.
but out of 100 times one doc sees another do something that really compromises pt safety how many times do you think they report it? my guess is no more than 10 and most of those are probably one specialty reporting another to QI.
What do you mean report it? Why wouldn’t you just talk to the doc? That’s what I do.
I’m an arm chair med-mal guy in EM. There are a few good monthly med-mal emails written by EP’s. ACEP also has some good lectures (Sullivan, Reyes particularly).
A few points:
“Chart well” is essentially
-timestamp your re-evals
-state that a high risk diagnosis was not present whether by symptoms or signs (no thunderclap headache or no pulsatile mass or +neurovascularly intact)
-put the burden of proof on the plaintiff and write a patient specific custom 2-4 sentence paragraph in your DCI each dc
-whereas missed MI is our historic bane, the new world puts neurologic cases to the forefront
—establish time of onset of neuro symptoms
—chart why tpa was not given in cva cases
—we suck at doing and charting neuro exams, and that’s often where we get burned. “no gross motor deficits” is not a neuro exam.
-get your nursing staff at huddle involved in risk management. Their notes can save the day. “Pt ambulating without difficulty” is the best thing a nurse can write. Other good things that everyone should put in their notes are “patient wants to go home”
-Read Bouncebacks.
-Read Bouncebacks Pediatrics around Halloween. It’s the scariest book I’ve ever read. Every kid comes in with common symptoms, goes home, and comes back dead. Everything is just terrifying. In the end: Get a UA and an accucheck (practically) on any kid! (Not really, but on weird cases that aren’t a straight forward AOM, get an accucheck)
Cases would shrink up if plaintiff experts weren’t… what they are. But reviewing a case, using retrospective bias, and then looking at the money available for doing this, the $$ light up in the eyes. That’s why we get plaintiff experts making crazy claims such as the case above, or the famous “gross negligence” example within the past 5 years that made ACEP news.
that’s very solid advice.
another good thing for peds is to document a specific behavior in the gen part of the exam so instead of “well appearing NAD” i write “sitting up in mom’s arms sucking pacifier and playing w/ iPhone.” first of all it’s a good thing to have in the chart, secondly it’s a great cognitive forcing strategy for when you’re sitting at the computer and then think, “gee, that kid actually wasn’t doing much….” i try to make residents do this.
the neuro thing is DEFINITELY true, one of my friends recently told me (i don’t have the data/reference) that epidural abscess is fast becoming the hot med mal dx.
Yes, in the end…it is sadly other docs that get docs sued. But there is a need out there, but like many similar things it seems to attract a certain type.
A no fault as fair as possible system would be great, as a uniform one would.