I'll go ahead and answer the questions within this thread and then use my responses to flesh out the document which will take me some time to pull together.
I *will* be specific about my case because as noted above, everyone talks in generalities because no one wants to be seen as less than 100% perfect. I will not give identifying information about my plaintiff and will try and treat her complaints with respect.
I would be curious to know what, if any, therapeutic relationship you had with the patient during this process. Was she still actively under your care when you received the settlement letter?
No she was no longer under my care.
I saw her a few times post-operatively and then made her the standard (in my field) 6 month follow-up. She cancelled her follow-up and unbeknownst to me, asked for her records.
That was Lesson #1. We had no process in place for notification of physicians if a patient (or other provider) asked for a patient's records. A patient or other provider simply had to ask and the front office sent them out. That meant I had no idea that when she cancelled her appointment that she likely had no intention of rescheduling or coming back. Had I known she was not going to return, I would have been forewarned of a possible problem. It may not have changed the outcome, but I may have been better prepared.
If you still had a relationship with her, did you fire her? Are you supposed to do that, or not do that?
It is my understanding that most patients do not sue someone they are still in a patient-physician relationship with and therefore, the question about termination from the practice is usually moot.
However, it behooves you to HAVE a process in writing to follow. My process is that patients who no-show or cancel appointments or fail to follow medical advice, receive a letter. If within 30 days, they do not reschedule, then they either receive another "please reschedule" letter (this is typical for benign complaints) or a certified letter stating that they have an abnormality which requires follow-up/biopsy/surgery. Finally, for patients who have a serious problem and do not reschedule/have multiple no-shows/fail to follow medical advice which may place their health in jeopardy or who are not an asset to the practice (ie, the patient who physically touched me, or the one who was sexually inappropriate), they are terminated from the practice. The referring doctor is CCd on all these letters. Its a real PITA and I know practitioners who simply say, "I made them a follow-up appointment and documented in my note what they were supposed to do, if they don't show/call and cancel/fail to follow up then its their problem and I'm protected." I don't know if that's true and I follow the advice of my malpractice provider.
But in a nutshell, you are not prohibited from terminating a patient who is suing you but on most cases the point is moot since they have self-terminated. It is best not to take any action against them once the process has started because it looks petty on your part and doesn't offer you any protection. The time to terminate is earlier, when they fail to follow-up, etc. Do NOT terminate them without referring them to another provider or making sure they have appropriate followup especially if there is an ongoing problem. That can be deemed abandonment.
Did you have any direct contact with her during this process, or was everything done through attorneys?
Once the complaint/settlement letter was submitted, everything was done by he attorneys. I was told NOT to contact her and not to discuss with anyone outside of my business partner (since the practice was named) and of course, my family. Otherwise, anyone I discussed it with could be deposed. This is when you start to feel alone - you can't talk to anyone, you have to watch what you say in the OR/office, etc. because your co-workers can be deposed. Anything you say in a peer-review session IS protected; nothing else is. Even people you think would support you, may not when it comes to trial.
Talking to the plaintiff is risky and best avoided. Anything you say to him/her can be used against you and anything in your favor may no longer be admissible. Any evidence you have of your "innocence" needs to be shared with your attorney and not the plaintiff.
I'll bet that feels good. Go buy yourself something nice.
Hmmm...good idea. Well I'm going on vacation out of the country next week so that will be my gift to myself.
Interestingly, I received a certified letter from my state medical board yesterday. After changing my pants, I opened the letter to find that I am not the target of their investigation. They just want my records on the patient. Still scary.
Yep...I received a letter from a local hospital which I had to pick up at the post office, signature required. After all this, I crapped my pants too, thinking it was another suit...turned out to be the Key Fob for remote access to their EMR. LOL...
I have a few questions that maybe you could address:
1. At what point did you contact your malpractice carrier?
As the process server was walking out the door. This is actually required by my carrier.
I was served at the office, late in the day on a Friday.
Lesson #3: Have a process for being served.
You do not want to be served in front of a waiting room full of people. Your front office should be discreet and get the process server out of the waiting room and into the back.
My office tried to lie and say I had left for the day. I but the kibosh on that as soon as I heard, figuring I wasn't going to avoid whatever I was being served for (at that point I had no idea). Unfortunately, it was literally 4:30 pm on a Friday.
This is a standard tactic...you are served late in the day, commonly on a Friday, so you have the weekend to stew over it, and are not able to get ahold of your carrier, attorney, etc.
You may prefer to be served at home, but consider the disruption to Thanksgiving dinner if the process shows up at your door at that time. These things are more calculated for maximal emotional impact than you would think.
It is possible to have your attorney's office serve as a recipient for such papers. This is now my preference.
So, as soon as I signed for the Settlement Letter, I called my carrier. Most carriers will have a "Hotline" for such things. They asked me a few basic questions and assigned me a case worker. I think she contacted me the next week and we met in person to go over the Letter and to review the process.
2. Did you accept the malpractice carrier's attorney or find your own?
I called my attorney (who did my contracts) after meeting with the insurance carrier rep; his firm did not do Med Mal. But he's a *great* guy and read the Settlement Letter and was disgusted (these things are written to make you sound like the world's worst doctor/person). He did a few things:
1) called my insurance carrier and found out who they typically used
2) called his buddies and found out who was good
3) called one of the top groups in town (who was used by the insurance carrier) and got me in to see a Med Mal attorney the next day
At this point, my insurance carrier did not provide me an attorney. Their position (one many companies take) is that until you are sued, they will not provide you an attorney.
Lesson #4: your insurance carrier is not your friend (ok, I already knew that). The rep was very friendly but refused to offer advice. She was not legally able to do so. She could only review the process and ask whether I wanted to settle or not.
I nearly gave Consent to Settle (my policy requires that I give Consent - the company cannot Settle without my consent. This is KEY in any policy - you must give consent!!) because I was naive. The company would not/could not tell me the pros/cons of settling.
At the last minute, I figured it would be worth paying an attorney out of pocket even if it was just to tell me I should settle.
3. Can you estimate what all this has cost you (attorney's fees, time away from practice, etc)?
Attorney fees were a little over $3500. He charges $350 an hour.
Lesson #4: every little thing was "billable". So emails or phone calls? Yep...billed in 15 minute increments. I just thought we were having friendly chats. I learned to keep things to a minimum.
Time away from the practice? I have not calculated that, but I can tell you that it was considerable especially around the time of deposition. A few friends wanted me to calculate this so I could turn around and sue the patient for my "pain and suffering" and time lost from work (which was one of her complaints in the suit). But there were several meetings with the attorney which took all afternoon, the depo which was 4 hours for mine, and about 3 hours for plaintiff. It probably added up to 40 hours. That doesn't include the time I spent reviewing the depo, practicing for it, reading and preparing documentation and nights spent tossing and turning (and vomiting early on). It is incalculable.
4. Anyone else sued (hospital, anesthesia, radiologist, etc)? Has the suit been dropped against them as well?
Yep, my partner and our practice was named as was the hospital where the surgery occured. I know my partner and practice were dismissed and it is my understanding that the hospital was as well.
5. Was there a physician expert that provided input or testimony for the plaintiff? If so, have you reported that ***** to his/her specialty board?
Yep. The expert witness was a thoracic surgeon from another state. He clearly spends a ****load of time doing this stuff as detailed by his CV. Is being an expert witness against rules of specialty boards? It was fairly clear to me that he really didn't understand the case given what he wrote in his summary.
I found it *interesting* that they couldn't get anyone in my specialty, let along anyone in town, to state that I was practicing outside of the standard of care (long story short - she had tumor close to the skin in a redundant axilla and during dissection with a thin flap sustained a thermal injury, as well as post-mastectomy pain).
I'm sure the attendings here probably know how to do this but consider this question from a humble rookie:
How do you balance showing empathy for a bad outcome (irregardless of any fault on your part) versus admitting wrong-doing? Basically, how can you maintain humility without worrying about admitting guilt and leaving open yourself to being sued left and right?
That's a difficult one to answer.
You will be taught in medical school that physicians who apologize and are sorry are sued less. That may be true but don't let that lull you into believing that just because patients like you, they won't sue you.
One of the most suprising events of my whole experience to everyone was how nice the patient was to me at her deposition. She actually looked to me for approval and help with her answers. I truly believe that she liked me and even stated for the record that she did and did not believe I was unqualified to perform her surgery. I told her I was sorry that things did not turn out as she expected and that she was unhappy.
Lesson #5: sometimes its not the patient who is suing you, but their family. I firmly believe, and my attorney verified during her deposition, that the suit was not her idea. It was her family's.
Patients do appreciate humility and apology. However, in many states your apology is not protected under law and can be used against you as an Admission Against Interest. See what your states laws are. I wish you luck if you stay in Pennsylvania to practice.
Things I'd be curious to know:
- I have heard that if you refuse to accept a settlement (as it sounds like you did) then you become responsible for the legal costs of defending your case, and solely responsible for any judgement that is entered against you. Is that true?
That depends on your policy.
There have been cases of such. There have also been cases of hospital employed physicians for whom the hospital has settled several cases and then required the employee to pay back some of that settlement.
Thus, it is KEY that your malpractice policy requires CONSENT TO SETTLE. It is worth it to read through these policies carefully. You will sometimes find that the cheaper policies are cheaper for a reason.
I have a friend, a retired Ob-Gyn, who had a policy that decreased the amount he was covered every time he was sued and lost or settled. So while he may have started with the standard 1mil/3mil coverage, as time wore on it became less and less. Don't do this. It is not worth the savings in premiums, IMHO.
I have a large carrier; larger carriers who insure more people, will have deeper pockets. Some smaller carriers may have cheaper policies or limits on your protection. While my policy is pricey I've been told by many attorneys and others in the know that they are a good company. It helps to ask around before committing yourself.
- Does a malpractice claim immediately end any existing physician-patient relationship? Can you reasonably fire a patient who sues you? (I suspect the answer is probably obvious, but just curious for something more than heresay opinion).
It actually does not officially end the relationship. Suprisingly, plaintiffs and their attorneys often see med mal suits as "business" and they wonder why we are so hurt by it. Therefore, you can have a patient who still wants to keep you as their physician yet feels the need to sue. These are unusual situations as suits as usually the result of angry patient + bad/unexpected/undesirable outcome. So yes, you could reasonably fire someone who sues you but its not recommended...it won't help you at that point and it looks petty. You want to come off as the bigger party.
- You mention that a complaint was filed with your BOM some time after the settlement demand was made. Is the complaint intended to garner support for the ensuing legal claim? Is that standard practice?
I'm not sure if its standard but my attorney felt that it was a tactic to try and force me to settle. "Ok you won't settle? Well we'll report you to the medical board and that might scare you into settling!"
The Board Complaint is not actually admissible into a lawsuit UNLESS they found me "guilty" of something. Findings in your favor are not admissible as evidence that I followed the standard of care.
What is the general process for the investigation of such a complaint?
The process here was that the complaint was lodged, the board reviewed it and sent me a letter (many months later) asking for a written response to the board complaint.
I spoke to my attorney who advised me "never appear before the board without legal representation" and "never submit a written response to any board inquiry without having an attorney review it." I wrote out a 7 page response to all the complaints and had my attorney review it. His office typed it up and he filed the necessary paperwork. He then hand delivered it to the Board (at a cost to me of course).
The board then assigned an expert witness of their own a local general surgeon whom I did not know (I forgot that my insurance carrier also had the case reviewed by an expert witness, a local breast surgeon, who felt that I complied with the standard of care). He submitted a report which detailed the complaint, my response and his recommendation that the complaint be dismissed without sanctions against me or my license. The board agreed and wrote me a nice but anticlimactic letter. For some reason, I thought the BOMs letter to me would be like, "you rock!".
At this point, there was about 1 month left before the 2 year limit on suing was up. I naively though that since the board complaint went nowhere, that things would just go away. Until that fateful day a couple of months later...
Thanks. This is one of those topics that get discussed "in general" a lot, but it's rare for a practicing physician to actually detail their own experience.
Yes which is exactly why I want to do it. I had to wade through this without help. I want you guys to learn from my experience.
I do not know the anwser to that question, but I am pretty sure that if you are sued, even if you are found "not guilty" or that the case had "no merit" in the first place, your malpractice rates can still rise significantly because they factor in the cost of defending you into the way they calculate rates. True?
Yes. Like any insurance policy they can raise rates or even drop you if they spend a lot of money defending you.
Very interested to see your experiences.
Personally, I get a significant number of breast complaints referred to me, so I would be really interested in knowing what, if anything, I can do in my documentation to help protect me? The breast stuff can be rather complex and cases that aren't straight-forward as to clinical decisionmaking get me paranoid.
Documentation, documentation, documentation is key. We had a representation from our malpractice carrier come out and review our charting. This was a service they offered free of charge. She picked 10 random charts and read through them, found no serious errors but made some suggestions about wording or detail.
You need to document any patient complaints and your response to them. For example, I documented my patient's pain and that she was not using the pain medication appropriately (ie, not taking the pills because they made her sleepy). I also documented that I offered her Gabapentin for post-mastectomy neuralgia and she initially refused it. Obviously the more documentation, the better but at some point you have to leave the office and stop doing charts. Its simply not realistic to document every word said. Any unsual events during a consultation I will dictate into my EMR right away before the memory fails.
For cases in which you have difficulty with clinical decision making, I document that I have informed patient of the uncertainty and that I cannot guarantee X, Y or Z and that they accept and agree with the plan. And I always bring patients back for whom I am uncertain or uncomfortable with. These are the patients that you suggest a second opinion or present at peer review conference.
I also document patients with unrealistic expectations, the "I want 150% guarantee doc" types. This is especially important for patients who are refusing biopsy/surgery.
Anyway, keep the questions coming...as noted, the document/sticky will take awhile but I am happy to answer questions as time allows.
