What happens when you get sued?

Hi everyone,

fourth year medical student here. I hope everything is going well for everyone. I recently read in one of the threads in this forum about how high malpractice insurance premiums are a problem in some states and it is in a "crisis" in some states. I would be grateful if someone with some real world experience can comment on the REALITY of the crisis-- is it simply just much ado about nothing or is it something significant? I would also be thankful if someone could walk me through the entire litigation process-- how does it work? Thanks in advance.

rs2006 said:

Hi everyone,

fourth year medical student here. I hope everything is going well for everyone. I recently read in one of the threads in this forum about how high malpractice insurance premiums are a problem in some states and it is in a "crisis" in some states. I would be grateful if someone with some real world experience can comment on the REALITY of the crisis-- is it simply just much ado about nothing or is it something significant? I would also be thankful if someone could walk me through the entire litigation process-- how does it work? Thanks in advance.

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Tough to comment on what you want in terms of the "reality" of the crisis without your being more specific. Yes, there really are states where it is tough to find physicians in certain specialties or emergency coverage in those specialties due to burden of liability premiums. Maybe you could be more specific.
Process varies slightly from state to state, but, in general, a physician will be served with a notice of "an intent to sue" or a "complaint of medical malpractice" filed with the state insurance commissioner. From there, most liability insurers will require one to contact them and they start the ball rolling on the doc's behalf. He (or she) will meet with his attorney to discuss the case-provide a general outline of the case, his perspective, go over the medical record, etc. The attorney will begin to formulate where the weaknesses are and how to combat the allegations spelled out in the "intent" or "complaint". This is the discovery phase-he will answer formal written questions from the plaintiff, depositions will be taken. Some states have pre-trial panels with varying compositions. These panels will hear the case somewhat informally and render a decision which is usually non-binding, i.e. the plaintiff can pursue the suit if ruled against by the panel. Some states have arbitration, binding or non-binding. If going to trial, a court date will be assigned and trial day arrives (assuming no settlement occurs). The case is presented, jury decides, and verdict rendered.

How common is it for residents to be sued? I'm interested mainly in surgeons but info about other specialties would also be interesting. Do most residents get sued at some point or other? For anyone who has been sued, how did it change your attitude to your work?

In general it is fairly uncommon for residents to be dierctly sued. Some may be named on suits, but even this depends on the hospital policy and how much they are willing to go to bat for you. At my hospital, there is a policy that protects residents from ever being named in a suit. If there is ever a suit brought against you, the hosptial is the only named defendent.

Who gets named in the suit is unfortunately not up to the hospital but rather to the plaintiff.

What typically happens is that the plaintiffs attorney requests a chart copy and goes through it with a fine-tooth comb. Everyone who's name appears witth either Dr before or MD/DO behind his name who was remotely involved in the care of the patient is getting named in the initial complaint. This mainly serves to escape statute of limitation issues (if you didn't name someone and 2-3 years later in the proceedings you find out that there is money to be made from this physician, the statute of limitations might prevent you from adding him at that point). While it does cost money for the plaintiff to name large numbers of people (more depositions for example), the potential payoff is so large that they are willing to make that investment. And unless you can proove that the plaintiffs attorney 'maliciously' put you on a suit you had nothing to do with, you have no recourse to get compensated for the damage you suffered (time, damage to your professional reputation, attorney expenses, lost job opportunities, mental anguish loss of conjugal experience).

During the 'discovery' period it becomes clearer to the plaintiffs attorney who the people are that they can get to and who they can't link to the alledged maplractice (the patient just comes and says 'dr chainsaw botched my carotid surgery, sue him. the attorney might find that in addition to dr chainsaw he can get his fingers on dr orboss, who read the doppler that lead to the surgery or dr sleepfast the anesthesiologist who allowed the blood pressure to drop for a split second). At some stage, YOUR attorney (typically paid for by your hospital or your malpractice carrier) will move to have you dropped, based on the fact that you worked under supervision, didn't make the therapy decisions etc. Most residents do get dropped, but sometimes they are kept on.

Getting 'named' is not so uncommon. And while it is a royal pita for the rest of your career (on every credentialing and insurance application you have to mark one of the dreaded 'yes' boxes), but a copy of the courts decision to drop you off the case is usually sufficient to get past that. Only if the hospital or your attending decide to settle the case while your name is still on it, you are screwed. For at least the next 10 years, anyone looking up your name on the medical board website will be able to see that 'a malpractice award has been paid by Dr X'.

Once you receive notice that you are being named in a suit ... DO NOT contact the patient suing you (or their family). DO NOT contact the attorney suing you. The attorney is representing his/her client and will not drop you just because he/she is a nice person. When you first find out, immediately contact your malpractice insurance carrier OR the hospital's risk management team. They will advise you on what to do and what not to do. Another advice: your lawyer is the expert on the law, not you. Whether you like it or not, it's no longer in the realm of "medicine" but medico-legal where hindsight is 30/20 (yes, not a typo).

During deposition, your lawyer will hopefully prepare you for "tricky" questions. Here is a few examples (taken from the journal Medical Economics June 3, 2005 issue). A good attorney by your side will hopefully protect and prepare you for some of these questions.


1. The double negative question - "Is it true that you didn't tell the patient that her shortness of breath wasn't significant?"

If you answer, "No," does that mean you didn't tell her, or that it wasn't significant? With such questions, it may not be clear what a Yes or No answer means. So to avoid adding to the confusion, you might respond: "Let me restate your question to make sure I understand it."

2. The leading question - "What did you do, Doctor, when it became clear to you that your patient was suffering from ..."

The correct response: "I'm not sure that it was clear to me at that time." or "I'm sorry, I don't agree with your premise. Here's why."

3. The guidelines ploy - "Doctor, the following guidelines are authoritative on this issue, aren't they?"

Your response: "Those are just general guidelines for most patients with this condition. But they're not authoritative regarding this particular patient. The reason they don't apply in this case was ..."

4. The dangerous possibility - "Doctor, isn't it possible that the patient could have been suffering from ...?"

Response: "Theoretically that's possible, but I don't believe there was any reasonable likelihood of it in this case"

5. The "just answer Yes or No" approach

If the question is complex or difficult, feel free to say "I can't answer that question with a simple Yes or No. Let me explain why." If you don't understand the question, say so.

group_theory said:

Once you receive notice that you are being named in a suit ... DO NOT contact the patient suing you (or their family). DO NOT contact the attorney suing you. The attorney is representing his/her client and will not drop you just because he/she is a nice person. When you first find out, immediately contact your malpractice insurance carrier OR the hospital's risk management team. They will advise you on what to do and what not to do. Another advice: your lawyer is the expert on the law, not you. Whether you like it or not, it's no longer in the realm of "medicine" but medico-legal where hindsight is 30/20 (yes, not a typo).

During deposition, your lawyer will hopefully prepare you for "tricky" questions. Here is a few examples (taken from the journal Medical Economics June 3, 2005 issue). A good attorney by your side will hopefully protect and prepare you for some of these questions.

1. The double negative question - "Is it true that you didn't tell the patient that her shortness of breath wasn't significant?"

If you answer, "No," does that mean you didn't tell her, or that it wasn't significant? With such questions, it may not be clear what a Yes or No answer means. So to avoid adding to the confusion, you might respond: "Let me restate your question to make sure I understand it."

2. The leading question - "What did you do, Doctor, when it became clear to you that your patient was suffering from ..."

The correct response: "I'm not sure that it was clear to me at that time." or "I'm sorry, I don't agree with your premise. Here's why."

3. The guidelines ploy - "Doctor, the following guidelines are authoritative on this issue, aren't they?"

Your response: "Those are just general guidelines for most patients with this condition. But they're not authoritative regarding this particular patient. The reason they don't apply in this case was ..."

4. The dangerous possibility - "Doctor, isn't it possible that the patient could have been suffering from ...?"

Response: "Theoretically that's possible, but I don't believe there was any reasonable likelihood of it in this case"

5. The "just answer Yes or No" approach

If the question is complex or difficult, feel free to say "I can't answer that question with a simple Yes or No. Let me explain why." If you don't understand the question, say so.

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These are excellent points from Medical Economics .

hey, so if there is a lawsuit against the hospital, but not me, but i am being questioned do i have to mention it on my application for credentialing for my new job? can it prevent me from getting credentialed/signing my contract?

This lawsuit is over something that happened when I was an intern and the documentation was poor. My resident didn't even write a note so it looked like it was all me 🙁

Hard24Get said:

hey, so if there is a lawsuit against the hospital, but not me, but i am being questioned do i have to mention it on my application for credentialing for my new job? can it prevent me from getting credentialed/signing my contract?

This lawsuit is over something that happened when I was an intern and the documentation was poor. My resident didn't even write a note so it looked like it was all me 🙁

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A few things.

First, if your program is of any size, there are probably a few hundred lawsuits pending against the hospital and assorted attendings that you are not named on. They will likely not go anywhere.

Second, you are not named on the suit (i.e. not a "defendent"). While I do not know all state laws, my general experience with many is that you do not get asked, "have you ever been deposed in a malpractice suit?". The questions are usually of two varieties, 1. "have you ever been named..." and/or 2. "have you ever settled or been found guilty/paid out on a malpractice suit..."

Third, if it looked like it was all you because of poor documentation, you would already be on the suit. Do not over dramatize this.

What you should be doing is speaking to your programs legal defense side. They would be telling you all this and providing you counsel. What you shouldn't be doing is A) speaking with plaintiffs attornies without your programs defense counsel and B) discussing anything about this pending case on SDN.

I saw an interesting series of articles written by an emergency room physician on getting sued. I'll try to dig it up for you.

MagicalTrevor said:

I saw an interesting series of articles written by an emergency room physician on getting sued. I'll try to dig it up for you.

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http://www.epmonthly.com/whitecoat/trial-of-a-whitecoat/

Here it is! I hope this answers your questions.

MagicalTrevor said:

http://www.epmonthly.com/whitecoat/trial-of-a-whitecoat/

Here it is! I hope this answers your questions.

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Read that last night.

Horrifying. I really hate the legal system.

One of my classmates who is from Florida said that OB malpractice insurance is high because it's so litigious there. Can anybody explain to me why? My top program is there, so I'd like to know what I'll be getting into if I decide to stay after residency (assuming I match there in the first place).

dr1day said:

One of my classmates who is from Florida said that OB malpractice insurance is high because it's so litigious there. Can anybody explain to me why? My top program is there, so I'd like to know what I'll be getting into if I decide to stay after residency (assuming I match there in the first place).

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http://www.health.am/gyneco/more/med-students-from-entering-ob-gyn/

http://forums.studentdoctor.net/showthread.php?t=87805

I don't know much about it personally. I've just read about it. There are some links.

MagicalTrevor said:

http://www.epmonthly.com/whitecoat/trial-of-a-whitecoat/

Here it is! I hope this answers your questions.

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That's a great read although I imagine it would take a long time to read it all the way through. I found it about halfway through the blog and remember looking forward to each installment. That guy is a pretty good writer.