"i got sued?"

[adaptation1]

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Well, no, I didn't -- yet. Malpractice is a big issue in medicine. At least that's what I glean from reading pop articles in Time magazine, as well as some more scholarly articles written by academic physicians.

But enough with theory. How about in practice? To what extent, that is, does malpractice interfere and influence the way a average physician practices, really? Is the thought "I must be particularly meticulous here so I won't get sued" a dark shadow that looms over each and every decision we're going to make, for better or for worse? For better, to encourage a physician to think twice before every important decision. For worse, to make her think twice, but not to help the patient, but simply to cover her ass?

And so there's the idea of defensive medicine, where we prescribe and order procedures simply to protect ourselves -- is that a conscious act on the physician, a conscious act that becomes instinctual, or is it simply a phenomenon of which physicians aren't truly aware, yet demonstrated after the fact by statistics? And is defensive medicine, besides a cause of rising health care costs, also detrimental to how we care for and treat our patients?

In my limited experience as an M2--correct me if i'm wrong, of course--malpractice is a issue about which physicians are fully cognizant and which they must work around in their practice daily. I shadowed a surgeon, for example, and he repeatedly emphasized the importance of documenting every interaction with your patient. "It'll help you protect you in the future." He also mentioned various instances where he had to go to court, the details of which he didn't elaborate upon. But safe to say, he was grilled on the cranial nerves by some lawyer, and he got really mad. Which didn't help his case.

And then you hear about the legendary old physicians--you know, the ones who have written a bunch of books about the art of medicine-- who claim that they never got sued during their career, because--their words, not mine-- they "empathize and are honest with their patient."

Any sort of insight would be great.

 

[TAWS]

Learn to shield your assets. Wouldn't want your life savings to be wiped out because of a suit.

 

[hrandani]

You can get sued and lose for doing everything perfectly right and running up against some bad luck and a vicious lawyer. So yes, it kind of looms over physicians. Especially when they have to pay a sizeable chunk of income every year and worry about permanently losing their license and income.

Fortunately this is rare.

 

[KinasePro]

Learn to shield your assets. Wouldn't want your life savings to be wiped out because of a suit.

Does this even happen (apart from in cases of gross negligence)? From everything I've heard/read, in the unlikely event that a case actually makes it to trial (rare) and the physician loses (even rarer), the average payout is $100k to $200k, well under the limit for most mal-practice coverage. Other than in the national news, have you ever heard of a physician's life and career being ruined as the result of a lawsuit (not arising from gross negligence)?

Some physicians (especially the surgical ones) are very cavalier when they discuss lawsuits, and often act like they're inevitable and will eventually happen to everyone. So I just wonder how much trouble you can actually get into if you're delivering the standard of care and AREN'T and obstetrician (they get hit hard with suits, and I'm pretty sure they're outliers...).

 

[ToldYouSo]

Wow, so a doctor can lose a suit even if he/she followed the standard of care? I really wish the jury consisted of other doctors who can accurately judge what was done correctly instead of non-physician peers who let emotion rather than fact sway their decision

 

[PMPMD]

Wow, so a doctor can lose a suit even if he/she followed the standard of care?

This is not SUPPOSED to happen. The standard 4 elements of a medical malpractice case are:

1. Duty was owed (patient/plaintiff was under care of physician)
2. Duty was breached (physician violated standard of care)
3. Breach caused injury.
4. Injury caused damages.

I really wish the jury consisted of other doctors who can accurately judge what was done correctly instead of non-physician peers who let emotion rather than fact sway their decision

Several states have mandatory medical malpractice panels that review cases prior to going to court. I believe some of these are comprised of physicians.

 

[PMPMD]

Well, no, I didn't -- yet. Malpractice is a big issue in medicine. That's what I've heard, read, and understood from reading pop articles in Time magazine, as well as some more scholarly articles written about academic physicians.

But how about in practice? To what extent, that is, does malpractice interfere and influence the way a average physician practices, really? Is the thought "I must be particularly meticulous here so I won't get sued" a dark shadow that looms over each and every decision we're going to make, for better or for worse? For better, to encourage a physician to think twice before every important decision. For worse, to make her think twice, but not to help the patient, but simply to cover her ass.

I don't think the thought of liability overshadows EVERY decision in most physician's practices, but it's definitely out there.

And then what follows is idea of defensive medicine, where we prescribe and order procedures simply to protect ourselves -- is that a conscious act on the physician, a conscious act that becomes instinctual, or is it simply a phenomenon of which physicians aren't truly aware, yet demonstrated after the fact by statistics?

In my limited experience as an M2--correct me if i'm wrong, of course--malpractice is a issue about which physicians are fully cognizant and which they must work around in their practice daily. I shadowed a surgeon, for example, and he kept on emphasizing the importance of documenting every interaction with your patient. "It'll help you protect you in the future." He also mentioned various instances where he had to go to court, the details of which he didn't elaborate upon. But safe to say, he was grilled on the cranial nerves by some lawyer, and he got really mad. Which didn't help his case.

Documentation IS very important. It's a good habit to get into while you're still in training. "If it's not in the chart, it didn't happen" is a commonly heard expression in hospitals. When you have hundreds (or thousands) of patient interactions a year, you won't remember specific details of a case when the lawsuit is filed (usually months or years later). You will have to rely on your charting to defend yourself.

And then you hear about the legendary physicians who claim that they never get sued, because--their words, not mine-- they "empathize and are honest with their patient."

I have heard studies that state that getting sued has more to do with how you interact with patients and less to do with whether you made the right decision. Of course, it's probably better to do your best in both areas. If you amputate the wrong leg, you'll probably get sued no matter how nice you are.

Any sort of insight would be great.

 

[macgyver22]

I practice internal medicine. My wife practices gyn. We live in a major metropolitan area which has some impact on my views. Malpractice lawsuits occur with different frequencies depending on where you live and what your field of medicine is.

The unfortunate fact is that lawsuits are not rare. I doubt there is an Ob/gyn in our area who hasnt been sued and the vast majority have been sued multiple times. It seems to be something that happens about twice a decade for Ob's around here. Internal medicine lawsuits are less commons but I don't know anyone who has gotten through an entire career unscathed.

If you're going to be a doctor you have to get used to the idea that you most likely will be involved in a lawsuit at some point in your life and it may be when you least expect it. Many lawsuits are brought when nothing was done incorrectly. Lawsuits arent really about malpractice but maloccurence or bad outcomes, and you cant always control that. Everything that we do to cover ourselves may reduce the odds that a lawsuit will be successful but it doesnt prevent anyone from suing you. To file a suit all a lawyer needs is a plaintiff and they need to sign an affidavit claiming that they have reviewed the basic details of the case with a physician who said there was a possible basis for a lawsuit. He doesn't even have to give the physicians name. The bar is set pretty low.

To win a case is a little harder. The plaintiff technically has to meet the 4 criteria that were described above but in the real world there is an awful lot of gray area. If you look at each of those four items you can see that a lot of it is a judgement call and unfortunately the people making the call are entirely ignorant of how medicine is practiced except for what they see on TV. In most cases the people on the jury aren't even required to have a high school diploma or any minimum level of education.

Many cases do get settled out of court but not necessarily because the physician did anything wrong. Many cases are settled because the risk of rolling the dice with a jury is too great. Bad baby cases and breast cancer cases are some of the toughest to defend because the sympathy factor is great in bad baby cases and people want to believe that early diagnosis can prevent all breast cancer deaths ( not true), and the awards tend to be very high.

To answer the original question, yes defensive medicine is a significant part of what you will do as a physician. More in some fields than others. I spend a lot of time chasing down patients who haven't followed through on things i told them to do. I would guess conservatively that 20% of the tests I order would not be ordered if didn't have the specter of a law suit always hanging there in the background. Juries put very little stock in a physicians clinical judgement. They are much more impressed with CT's and MRI's. I don't think about it all day but it does creep into my decision making at least once a day.

The irony of it all is that the only time I have ever been sued was in a case where i went above and beyond to make sure we did everything we could for a patient and then got sued because the patient didnt have cancer. I can't give details but it just goes to show that no matter what you do you can't ever protect yourself completely from being sued. It's going to enter your thoughts and it will be part of your life. Its going to make you very angry sometimes, but it just goes with the territory.

 

[docB]

The possibility of getting sued influences every decision I make. It is an omnipresent threat that greatly diminishes my happiness with medicine as a career choice.

Everyone practices defensive medicine even if they don't realize or admit it. In the real world of private practice we all practice defensively. The current "standard of care" (a loaded legal term, not a medical one) arose during the current malpractice crisis so the "standard of care" itself is defensive. Just look at the way we treat chest pain.

We all know docs who have been sued and most of us know docs who have been ruined by a suit. I'm talking about a regular suit, not a Diprivan for insomnia kind of suit. Sooner or later every one pulls the trigger on a loaded chamber in medicine.

It is absolutely true that you can do nothing wrong and still lose everything. That is just how society wants it. The ability to sue you is the safety net.

Don't ever forget that the next patient you see could be the one who ends your career.

 

[JackShephard MD]

The possibility of getting sued influences every decision I make. It is an omnipresent threat that greatly diminishes my happiness with medicine as a career choice.

Everyone practices defensive medicine even if they don't realize or admit it. In the real world of private practice we all practice defensively. The current "standard of care" (a loaded legal term, not a medical one) arose during the current malpractice crisis so the "standard of care" itself is defensive. Just look at the way we treat chest pain.

We all know docs who have been sued and most of us know docs who have been ruined by a suit. I'm talking about a regular suit, not a Diprivan for insomnia kind of suit. Sooner or later every one pulls the trigger on a loaded chamber in medicine.

It is absolutely true that you can do nothing wrong and still lose everything. That is just how society wants it. The ability to sue you is the safety net.

Don't ever forget that the next patient you see could be the one who ends your career.

This is a sad revelation.

I hope this isn't the case for most physicians or for myself in the future.

 

[LoveandHate]

The possibility of getting sued influences every decision I make. It is an omnipresent threat that greatly diminishes my happiness with medicine as a career choice.

Everyone practices defensive medicine even if they don't realize or admit it. In the real world of private practice we all practice defensively. The current "standard of care" (a loaded legal term, not a medical one) arose during the current malpractice crisis so the "standard of care" itself is defensive. Just look at the way we treat chest pain.

We all know docs who have been sued and most of us know docs who have been ruined by a suit. I'm talking about a regular suit, not a Diprivan for insomnia kind of suit. Sooner or later every one pulls the trigger on a loaded chamber in medicine.

It is absolutely true that you can do nothing wrong and still lose everything. That is just how society wants it. The ability to sue you is the safety net.

Don't ever forget that the next patient you see could be the one who ends your career.

Wow. I can totally see how an EM doctor would end up (rightfully so) thinking this way.

On the bright side, don't you get paid more for ordering more tests? I once worked with a physician that would order everything (from the start) even if the lab was only remotely justified.... Amylases for everyone!!! lol

 

[macgyver22]

Wow. I can totally see how an EM doctor would end up (rightfully so) thinking this way.

On the bright side, don't you get paid more for ordering more tests? I once worked with a physician that would order everything (from the start) even if the lab was only remotely justified.... Amylases for everyone!!! lol

No you dont get paid more for ordering more tests. A cardiologist who orders a stress test which he does in the office will make money from that but the ER doc makes nothing off the tests he orders and the vast majority of tests that doctors order ( blood work, CT scan, MRI, Mammo, unnecessary specialty consults) are performed by another entity so the ordering doctor is not reimbursed in any way for ordering these tests.

If society would allow physicians to rely on their clinical judgement the doctor would be right 99% of the time. Instead they force physicians to order unnecessary tests that add billions to the cost of medical care and probably add very little to overall outcomes.

 

[LoveandHate]

No you dont get paid more for ordering more tests. A cardiologist who orders a stress test which he does in the office will make money from that but the ER doc makes nothing off the tests he orders and the vast majority of tests that doctors order ( blood work, CT scan, MRI, Mammo, unnecessary specialty consults) are performed by another entity so the ordering doctor is not reimbursed in any way for ordering these tests.

If society would allow physicians to rely on their clinical judgement the doctor would be right 99% of the time. Instead they force physicians to order unnecessary tests that add billions to the cost of medical care and probably add very little to overall outcomes.

You guys can bill for interpretation cant you? Like if you do an ABG isn't the billing for interpreting it $100. I'm guessing this doesn't apply to other labs? Oh well. I'm glad I read some of these posts. Just another reason to go into derm i guess.

 

[macgyver22]

You guys can bill for interpretation cant you? Like if you do an ABG isn't the billing for interpreting it $200. I'm guessing this doesn't apply to other labs?

You can bill for anything you want but just because there is a code for something , that doesnt mean insurance companies will pay for it. $200 for interpretation of an ABG? Not likely. I don't do blood gases in the office but i seriously doubt any insurance company will pay for interpretation much less that kind of money. I'm lucky if i get paid $35 for performance AND interpretation of an EKG.

Keep in mind too that all these tests require time to review and follow up on so not only do you not get paid for them but you also dont get paid for the time it takes to follow through on them. I spend at least an hour and usually more every day reviewing and following up on the labs from the day before including writing letter to patients and calling them to review the results.

 

[KinasePro]

We all know docs who have been sued and most of us know docs who have been ruined by a suit. I'm talking about a regular suit, not a Diprivan for insomnia kind of suit. Sooner or later every one pulls the trigger on a loaded chamber in medicine.

It is absolutely true that you can do nothing wrong and still lose everything.

What are the circumstances that lead to losing your career over a good, reasonable decision? Apart from some of the crazy stuff in OB/GYN, I've never heard of a career being ruined because of a bad outcome... sobering stuff

 

[Bojack Horseman]

What are the circumstances that lead to losing your career over a good, reasonable decision? Apart from some of the crazy stuff in OB/GYN, I've never heard of a career being ruined because of a bad outcome... sobering stuff

I am curious about this as well. What sort of infraction leads to loss of a medical license? If you are prohibited from practicing in a state, is that always permanent? Can you relocate to another state? Do medical schools revoke degrees?

 

[PMPMD]

I am curious about this as well. What sort of infraction leads to loss of a medical license? If you are prohibited from practicing in a state, is that always permanent? Can you relocate to another state? Do medical schools revoke degrees?

It's unlikely that a practicioner would lose his license over a single suit, unless he/she committed egregious violations. Licenses are also revoked for other indiscretions, such as fraud, drug use, sexual harrassment, etc.

Medical boards don't revoke MD/DO degrees. They don't need to. Without a license to practice medicine, the MD/DO degree doesn't help much.

You can relocate to another state, but they will certainly ask on their application if your licensure has been revoked by another state.

 

[45408]

Does this even happen (apart from in cases of gross negligence)? From everything I've heard/read, in the unlikely event that a case actually makes it to trial (rare) and the physician loses (even rarer), the average payout is $100k to $200k, well under the limit for most mal-practice coverage. Other than in the national news, have you ever heard of a physician's life and career being ruined as the result of a lawsuit (not arising from gross negligence)?

Some physicians (especially the surgical ones) are very cavalier when they discuss lawsuits, and often act like they're inevitable and will eventually happen to everyone. So I just wonder how much trouble you can actually get into if you're delivering the standard of care and AREN'T and obstetrician (they get hit hard with suits, and I'm pretty sure they're outliers...).

A general surgeon has a 99% probability of being sued at least once by age 65.

Yeah, I'd say it's inevitable. Document your conversations and actions well.

 

[Rendar5]

What are the circumstances that lead to losing your career over a good, reasonable decision? Apart from some of the crazy stuff in OB/GYN, I've never heard of a career being ruined because of a bad outcome... sobering stuff

It's not loss of a license, it's burnout and a severe disruption in your clinical judgment. There is a tendency to become ultra-conservative and question all your decision-making in EM docs following a suit, and I'm sure this applies to all other docs as well. If you work in EM for any lenght of time, you will know this as most docs are sued at least once a decade.

 

[docB]

What are the circumstances that lead to losing your career over a good, reasonable decision? Apart from some of the crazy stuff in OB/GYN, I've never heard of a career being ruined because of a bad outcome... sobering stuff

There are a number of ways to lose everything over a case without having comitted gross negligence or criminal behavior. As mentioned it is really unusual to lose a license over a malpractice case but the other ways are more insidious.

If you lose more than your policy coverage (which is usually 1 million per event and 3 million cumulatively) you are personally responsible for what ever the amount over that is. Thus a $2 million verdict would leave you having to come up with $1 million on your own. For most of us that means losing everything and declaring bankruptcy. Some states (e.g. Florida) allow you to keep your home. Most don't. You can have any future money you earn garnished depending on how your bankruptcy is set up. The plaintiffs lawyers will often negoiate to keep a settlement under the policy limit as an incentive to the doctor to settle.

If you lose enough money or lose enough suits you will not be able to get malpractice insurance. If you are uninsurable you are done.

If your case is spun to involve allegations of violation of federal regulations (e.g. EMTALA or CMS regs) you will be unable to get CMS certification. Again, for most docs that's it for you. Many suits have such allegations tacked on by the plaintiff's lawyers to try to increase the dollar yield and to get free investigation help. They also add those on to up the stakes for the defendant and try to get them to settle.

You may find yourself unable to get hospital or procedural priveledges after your suit. If you are hospital based or procedural you will have a lot of difficulty overcoming that.

As for the question of how you lose a suit if you did nothing wrong... All that requires is a sympathetic patient (like a kid or a young mother) or a crazy juror with an axe to grind or a really charismatic plaintiff lawyer and so on and so on.

 

[colbgw02]

The possibility of getting sued influences every decision I make. It is an omnipresent threat that greatly diminishes my happiness with medicine as a career choice.

I would agree with this. In fact, I would say not only is it omnipresent - it's institutionalized. Defensive medicine has been fully incorporated into medical training. So much so, that physicians don't even recognize it as defensive medicine anymore. They just think it's the way to practice.

And to everyone worrying about losing his life savings, I would encourage you to find a physician who has been through a suit and get him them to tell you about it, if he will. There are probably some blogs that do the same, although without the personal touch. It's an extremely exhausting experience, full of self doubt and emotional extremes. It's pretty rare for a physician to lose his savings from a suit, especially with some decent financial planning. However, in many respects, the physician has already lost from the moment the suit is filed.

 

[D elegans]

This thread is really bumming me out.

 

[CodeBlu]

The possibility of getting sued influences every decision I make. It is an omnipresent threat that greatly diminishes my happiness with medicine as a career choice.

Everyone practices defensive medicine even if they don't realize or admit it. In the real world of private practice we all practice defensively. The current "standard of care" (a loaded legal term, not a medical one) arose during the current malpractice crisis so the "standard of care" itself is defensive. Just look at the way we treat chest pain.

We all know docs who have been sued and most of us know docs who have been ruined by a suit. I'm talking about a regular suit, not a Diprivan for insomnia kind of suit. Sooner or later every one pulls the trigger on a loaded chamber in medicine.

It is absolutely true that you can do nothing wrong and still lose everything. That is just how society wants it. The ability to sue you is the safety net.

Don't ever forget that the next patient you see could be the one who ends your career.

Well... thanks. I hope Canadian medical schools accept me now... lol

 

[Miss Alyssa]

This thread is really bumming me out.

Me too... I wanna do ob/gyn🙁

 

[Socrates25]

This is not SUPPOSED to happen. The standard 4 elements of a medical malpractice case are:

1. Duty was owed (patient/plaintiff was under care of physician)
2. Duty was breached (physician violated standard of care)
3. Breach caused injury.
4. Injury caused damages.



Several states have mandatory medical malpractice panels that review cases prior to going to court. I believe some of these are comprised of physicians.

Who defines what the "standard of care" is? I'll tell you who, its a hired ***** scumbag "expert witness." Dr Paul White, who was previously recognized as a propofol expert and a leader in the field of anesthesiology, just testified in the Michael Jackson trial that Jackson gave himself propofol and the good Dr Murray did not administer the injection. Why would such a person conjure up outrageous theories without any supporting evidence whatsoever? $$$$$$

The real problem with lawsuits is not the lawyers, it's the doctors. When you make 100 times more money testifying in lawsuits and serving as "experts" rather than do clinical medicine, it gives doctors an ENORMOUS incentive to taint their testimony.

Lawyer by himself cant do jack**** without an "expert" backing him up.

 

[Socrates25]

There's a general theme on here that if you get sued, you will "lose your career."

As bogus as the lawsuit industry in this country is, this statement is also ridiculous.

Getting sued is certainly a pain the ass, but it certainly doesnt limit your ability to practice medicine.

Periodically a newspaper will get access to the NPDB and report on a few "bad" doctors who get sued a lot. Its easy to find docs in there who have had 10+ malpractice payouts, yet they still practice medicine. Yes, their malpractice premium is probably ridiculous, but this idea that 1 bad lawsuit means your career is over is clearly false.

In fact, I think medical boards should investigate malpractice better. Yes, a few lawsuits doesnt = bad doctor but when you have one guy who's been sued 30 times and everybody else in his field only has 1 or 2 lawsuits, thats evidence of bad practice and medical boards lose credibility when they fail to weed out these guys.

 

[docB]

This thread is really bumming me out.

Well... thanks. I hope Canadian medical schools accept me now... lol

Me too... I wanna do ob/gyn🙁

The point of all this is not to get depressed about the state of medicine and the med mal crisis. The point is for everyone embarking on a career in medicine to go into it with their eyes open and to be aware of the challenges we face as physicians.

If you are realizing that the horrific liability system is a big problem then that's good. You should try to learn about it during your education while you are relatively (but not completely) insulated from the possibility of being sued. I suggest that you do two things. First, as with everything else in medical education seek out physician mentors who you respect and who you want to be like in the future and see how they deal with this. Then be like them until you gain enough experience to make your own decisions. Second, join the political fight for tort reform.

Who defines what the "standard of care" is? I'll tell you who, its a hired ***** scumbag "expert witness." Dr Paul White, who was previously recognized as a propofol expert and a leader in the field of anesthesiology, just testified in the Michael Jackson trial that Jackson gave himself propofol and the good Dr Murray did not administer the injection. Why would such a person conjure up outrageous theories without any supporting evidence whatsoever? $$$$$$

The real problem with lawsuits is not the lawyers, it's the doctors. When you make 100 times more money testifying in lawsuits and serving as "experts" rather than do clinical medicine, it gives doctors an ENORMOUS incentive to taint their testimony.

Lawyer by himself cant do jack**** without an "expert" backing him up.

This is true but the lawyers rule the flawed process. The physician "experts" are merely unscrupulous enablers of that system. The answer for this is to change legal precedent to hold that physicians who are acting as expert witnesses are practicing medicine by doing so. Then they could be held to standards of accountability and peer review by state boards of medicine. As it is they can basically spout anything they think they can get a jury to believe. It can be medically preposterous. Putting them under the jurisdiction of the boards would inject a little reality back into the world of expert witnessing.

There's a general theme on here that if you get sued, you will "lose your career."

As bogus as the lawsuit industry in this country is, this statement is also ridiculous.

Getting sued is certainly a pain the ass, but it certainly doesnt limit your ability to practice medicine.

Periodically a newspaper will get access to the NPDB and report on a few "bad" doctors who get sued a lot. Its easy to find docs in there who have had 10+ malpractice payouts, yet they still practice medicine. Yes, their malpractice premium is probably ridiculous, but this idea that 1 bad lawsuit means your career is over is clearly false.

In fact, I think medical boards should investigate malpractice better. Yes, a few lawsuits doesnt = bad doctor but when you have one guy who's been sued 30 times and everybody else in his field only has 1 or 2 lawsuits, thats evidence of bad practice and medical boards lose credibility when they fail to weed out these guys.

No one here except you made a statement that any suit will result in the loss of a career. It is rare for a doc to lose everything due to a suit but it does happen. Your statement that getting sued doesn't limit your ability to practice is incorrect. Losing a suit definitely does result in a review of your license and hospital privileges. It is common for suites to result in a curtailment of those privileges.

 

[adaptation1]

Thanks for the great posts, guys.

Another thought came to mind, as I read the other thread, "the art of medicine." So humor me.

Could the recent buzz about evidence-based-medicine and clinical algorithms in the past 20 years be the offshoot of our legalistic atmosphere in medicine? That, since we are getting sued, let's just find a straightforward way to eliminate errors and lapses in judgment. And for the most part that sounds great.

But perhaps it's the other way around, which I think is more possible -- that, as strict algorithms replace clinical judgement and iron out variations between the way doctors are trained and then practice, it becomes easier to sue and claim malpractice. After all, with algorithms there always is " the best way" to approach a medical problem; and if the doctor fails to follow it to a T, there's automatically an opportunity for legal action.

 

[macgyver22]

I agree with docB. I dont think you should be overly depressed about this any more than you should be terminally depressed about not getting the residency you dreamed of. Malpractice law suits are a fact of life. If you're going to be a physician you need to accept that. If its a huge issue for you then take it into consideration when you choose a specialty, but dont think you can avoid them by being a good doctor. Even the best doctors get sued. As I said before, lawsuits are about bad outcomes much more than bad medicine and outcomes have more to do with biology than your skill as a physician many times.

You can try to do something about it by getting active and supporting politicians who want to correct the issue but there you may have to sell your soul to the devil to have a chance of getting what you want. I've found that most of the politicians who support tort reform have unacceptable positions on many other issues that are important to me. I often end up voting with my conscience and against the guys who might actually be able to help with this problem. I've seen so many tort reform efforts come and go that I've lost hope of them ever succeeding in this lawyer controlled political system of ours.

If I've learned anything over the years about avoiding lawsuits its that communication can help a lot. If you take the time to explain things in a language your patients understand and let them know why you're making the recommendations you're making, they have more confidence in what you're doing even if it goes bad. If they feel like you are approachable and that you made them a real partner in the decision making process you have a better chance of not being sued. People are much less likely to sue someone they like. You will still get sued but not as often as if you're an arrogant jerk.

 

[45408]

If I've learned anything over the years about avoiding lawsuits its that communication can help a lot. If you take the time to explain things in a language your patients understand and let them know why you're making the recommendations you're making, they have more confidence in what you're doing even if it goes bad. If they feel like you are approachable and that you made them a real partner in the decision making process you have a better chance of not being sued. People are much less likely to sue someone they like. You will still get sued but not as often as if you're an arrogant jerk.

I feel like this is probably all true, which is why I try to do these things now as a resident.

The way I see it, malpractice lawsuits all stem from an unexpected and undesired outcome. I try to make sure that when I consent someone for an operation that I explain the possible outcomes and give rough estimates as to how likely that would be. It would be bizarre to get sued for an outcome that everyone was expecting, and nobody would sue you if something desirable happened (cancer gone, pain improved, muscles bigger...).

 

[adaptation1]

Hey, I want to know your opinion about this. A surgeon told me that a lot about medicine is instilling confidence in the patient; one could argue that it is the most important part, and the trait that can come only with experience.

And there are so many possible complications to any given procedure: if you were to read them one by one to the patient, they would be scared as hell and incredibly anxious. So the surgeon recommended telling these complications to patients as if such complications would only possibly happen to OTHERS but not certainly the patient themselves. In such a way, you can instill confidence in the patient and ensure a smoother interaction and maybe operation even.

But if there were complications, wouldn't the patient then feel cheated?

On the other hand, if I were to totally relate each and every complication as if it very well happen to them, wouldn't the patient lose confidence in their doctor? They would be scared as hell. Yet this probably could minimize your chances of being sued if complications were to arise: "I already warned ya..."

How do you strike a balance?

I feel like this is probably all true, which is why I try to do these things now as a resident.

The way I see it, malpractice lawsuits all stem from an unexpected and undesired outcome. I try to make sure that when I consent someone for an operation that I explain the possible outcomes and give rough estimates as to how likely that would be. It would be bizarre to get sued for an outcome that everyone was expecting, and nobody would sue you if something desirable happened (cancer gone, pain improved, muscles bigger...).

 

[macgyver22]

Hey, I want to know your opinion about this. A surgeon told me that a lot about medicine is instilling confidence in the patient; one could argue that it is the most important part, and the trait that can come only with experience.

And there are so many possible complications to any given procedure: if you were to read them one by one to the patient, they would be scared as hell and incredibly anxious. So the surgeon recommended telling these complications to patients as if such complications would only possibly happen to OTHERS but not certainly the patient themselves. In such a way, you can instill confidence in the patient and ensure a smoother interaction and maybe operation even.

But if there were complications, wouldn't the patient then feel cheated?

On the other hand, if I were to totally relate each and every complication as if it very well happen to them, wouldn't the patient lose confidence in their doctor? They would be scared as hell. Yet this probably could minimize your chances of being sued if complications were to arise: "I already warned ya..."

How do you strike a balance?

I dont think that's good advice at all. First of all its dishonest and as you stated it would certainly increase your chances of being sued since the patient would rightfully feel like he/she was mislead. Deception is not a trait that will endear you to your patients.

I also agree that you can't go over every possible complication without sounding like one of those ridiculous pharmaceutical commercials ( side effects may include ..blah blah blah.. a condition known as hotdog fingers.. and death). The problem with listing everything is that you can't. There is always the potential for unexpected side effects. Additionally the patient will likely tune out and not hear 3/4 of what you say. The perception may also come across that this is an incredibly dangerous treatment option because there are so many potential bad outcomes.

My approach is to limit the discussion to the three or four most common side effects and the one or two most serious but very rare side effects. I try to give the patient a rough idea of the incidence of the side effects. You don't need to give exact numbers. I always make a point of reassuring patients that this list of potential complications or side effects is not a list of the things that will happen but a list of the things that probably wont happen. Patients can easily be overwhelmed with information of this sort but they will appreciate the time you take to be honest and tell them what they really need to know. You dont have to lie to them to instill confidence.

 

[45408]

Hey, I want to know your opinion about this. A surgeon told me that a lot about medicine is instilling confidence in the patient; one could argue that it is the most important part, and the trait that can come only with experience.

And there are so many possible complications to any given procedure: if you were to read them one by one to the patient, they would be scared as hell and incredibly anxious. So the surgeon recommended telling these complications to patients as if such complications would only possibly happen to OTHERS but not certainly the patient themselves. In such a way, you can instill confidence in the patient and ensure a smoother interaction and maybe operation even.

But if there were complications, wouldn't the patient then feel cheated?

On the other hand, if I were to totally relate each and every complication as if it very well happen to them, wouldn't the patient lose confidence in their doctor? They would be scared as hell. Yet this probably could minimize your chances of being sued if complications were to arise: "I already warned ya..."

How do you strike a balance?

Depends on their overall condition. When someone is in very poor health and comes in with a terrible problem, I tend to be pretty liberal about all the possible complications, since I've seen these types of patients crash, burn and die in short order after an operation. If you think that you have at least a shot at restoring them to a decent quality of life, and they want the operation, it's worth forging ahead. But I warn them (and their family) that with their bad heart, lungs and kidneys, this is a high-risk situation.

For an otherwise healthy woman going in for a lap chole, I'd say something like "Bleeding, infection, blah blah, and there's a pretty small risk of injury to your bile ducts or small bowel, but it is possible." No reason to tell them you might have to ex lap them a few days post-op when their perforated viscus declares itself.

Probably also depends on what your attendings want you to say, but I've watched a lot of them do it, so I model those that I think handle the situation well.

 

[matt30]

This is not SUPPOSED to happen. The standard 4 elements of a medical malpractice case are:

1. Duty was owed (patient/plaintiff was under care of physician)
2. Duty was breached (physician violated standard of care)
3. Breach caused injury.
4. Injury caused damages.


Several states have mandatory medical malpractice panels that review cases prior to going to court. I believe some of these are comprised of physicians.

It's alittle more complex than that.

There are several grounds of liability for doctors. I pulled the book on it because I was curious. There is liability based on the breach of the standard of care, liability based on lack of consent (informed consent or emergency consent), liability based on breach of contract, and liability based on fraud.

Within standard of care breaches there are sub-categories (and sub-standards) for particular facets of the practice. (E.g.attending to a pt, diagnosis, prescribing drugs, surgery, ect.) Generally the standard comes down to what a resonably prudent practicioner would have done exercising the required level of competence.

Someone also menioned that they would be much more comfortable having people in the profession become the fact finder, but the "you just don't understand" defense is extremely common. I rather not give doctors a differnt set of "peers" than everyone else.

 

[docB]

Someone also menioned that they would be much more comfortable having people in the profession become the fact finder, but the "you just don't understand" defense is extremely common. I rather not give doctors a differnt set of "peers" than everyone else.

I disagree. A regular civil trial asks a jury of laymen to learn a lot of complex law in a complicated, adversarial environment when they'd probably rather be somewhere else. And that's to decide issues like who is at fault in a car accident. A medical malpractice trial has all of those factors diminishing the process and that same jury must try to understand a lot of complex medicine. In fact they will be being taught different medicine by each sides experts.

Additionally every juror has personal experiences with doctors and medicine. The hold the same misperceptions that we encounter in the clinic, there is a pill to fix everything, medical science is amazing and infallible, because of those two ideas any bad outcome must be someone's fault.

Juries are heavily swayed by sympathetic plaintiffs. That shouldn't be but it is.

For these and other reasons I don't think that med mal trials can be effectively deliberated by typical juries.

I really think that med mal should be divided into two distinct tasks. There should be a compensatory mechanism that ensures that patients who have bad outcomes have support regardless of negligence. There should be a seperate section that determines when malpractice occurred and punishes doctors when necessary.

The problem is that when compensation can only be gained by alleging negligence you get a lot of allegations.
The

 

[macgyver22]

The issue of expert wittnesses is something that needs to be addressed. When a jury hears from two opposing whittneses they may come away with the impression that these are two opposing and equal views when we all know that this is not the case. Often one of the witnesses is giving advice that is in line with what the vast majority of physicians would do and the other doctor is a fringe opinion describing something that few if any doctors would do ( look at the recent michael jackson case.

There really should be some effort to inform the jury what the majority of the medical community would do.

 

[Socrates25]

The issue of expert wittnesses is something that needs to be addressed. When a jury hears from two opposing whittneses they may come away with the impression that these are two opposing and equal views when we all know that this is not the case. Often one of the witnesses is giving advice that is in line with what the vast majority of physicians would do and the other doctor is a fringe opinion describing something that few if any doctors would do ( look at the recent michael jackson case.

There really should be some effort to inform the jury what the majority of the medical community would do.

What needs to happen is the specialty medical societies and state medical boards should have to "sign off" on your testimony stating that its legit. After all, organizations define a "standard" of care, not just one *******'s individual opinion.

There have been a few subspecialty organizations that have tried to curtail rogue expert witnesses. One neurosurgeon got his board certification revoked for BS testimony in a malpractice suit. Of course, the neurosurgeon then proceeded to sue the subspecialty org and an idiot judge stopped them from revoking his certification.

 

[matt30]

Additionally every juror has personal experiences with doctors and medicine. The hold the same misperceptions that we encounter in the clinic, there is a pill to fix everything, medical science is amazing and infallible, because of those two ideas any bad outcome must be someone's fault.

Juries are heavily swayed by sympathetic plaintiffs. That shouldn't be but it is.

For these and other reasons I don't think that med mal trials can be effectively deliberated by typical juries.

I really think that med mal should be divided into two distinct tasks. There should be a compensatory mechanism that ensures that patients who have bad outcomes have support regardless of negligence. There should be a seperate section that determines when malpractice occurred and punishes doctors when necessary.

The problem of sympathetic plaintiffs isn't just limited to med mal cases. In every tort case a good lawyer appeals to the emotions of a jury.

The solution you propose sounds a lot like the public workers comp system now in place in some states. All doctors would be required by the state to pay into a fund which would distribute the cost of all bad outcomes (not just negligent ones) across the board.

It's not a terrible idea, but I don't think practioners in low risk professions would like the idea too much.

 

[matt30]

The issue of expert wittnesses is something that needs to be addressed. When a jury hears from two opposing whittneses they may come away with the impression that these are two opposing and equal views when we all know that this is not the case. Often one of the witnesses is giving advice that is in line with what the vast majority of physicians would do and the other doctor is a fringe opinion describing something that few if any doctors would do ( look at the recent michael jackson case.

There really should be some effort to inform the jury what the majority of the medical community would do.

What needs to happen is the specialty medical societies and state medical boards should have to "sign off" on your testimony stating that its legit. After all, organizations define a "standard" of care, not just one *******'s individual opinion.

There have been a few subspecialty organizations that have tried to curtail rogue expert witnesses. One neurosurgeon got his board certification revoked for BS testimony in a malpractice suit. Of course, the neurosurgeon then proceeded to sue the subspecialty org and an idiot judge stopped them from revoking his certification.

The standard of care can be regional and subject to differnt conditions. A solo practicioner in rual mississippi may be subject to a lesser standard than someone at mass gen in boston. It all depends on the case and the nature of the injury. So unless something is just flat out wrong, differnt treatments may be aceptable in some conditions.

Post-trial review might work. Pre-trial aproval would be unworkable.

 

[Law2Doc]

The issue of expert wittnesses is something that needs to be addressed. When a jury hears from two opposing whittneses they may come away with the impression that these are two opposing and equal views when we all know that this is not the case. Often one of the witnesses is giving advice that is in line with what the vast majority of physicians would do and the other doctor is a fringe opinion describing something that few if any doctors would do ( look at the recent michael jackson case.

There really should be some effort to inform the jury what the majority of the medical community would do.

The expert witness issue is not a new one. I agree with some of the posters above that the lawyer is like an unloaded gun, and it's really the expert witness, the bullet, that causes damage. How do you fix this? Couple of options. First, you could circle the wagons and as a profession dump on those who take aggressively pro plaintiff positions. A doctor is not going to go out on a limb for a plaintiff if he gets hit with a professional sanction or censure. Not sure how workable this is, and there are some first amendment implications. The second option is to perhaps create a rating system of experts, such that the profession reviews testimony, and offers the court/jury a professional evaluation of such expert's expertise. Might not change anything, but at least there would be some frame of reference and the jury could at least know that the defendant's expert was held in higher regard by his peers. This in turn would increase the demand of higher rated experts, rather than those who simply seem more expert-like to the TV influenced jury. Third, issuance of more guidelines of practice can take a lot of the guesswork of standard of care out of the hands of the expert. If you didn't follow guidelines, then there could be a presumption you didn't follow the standard. Finally, some nations have experimented with professional expert juries in complicated cases. A jury of doctors evaluating a medmal case would certainly get the right answer. It would be costly and also has constitutional issues. I think these are the alternatives you can have and still give a wronged plaintiff his/her day in court. Things like tort reform and caps are also options that protect doctors, but often at the expense of the actually wronged.

 

[seelee]

I was talking to a friend of mine who is a defense attorney in a lot of med-mal cases. He said that lawyers don't ever get malpractice suits because they don't carry malpractice insurance. The lawyers who do get malpractice insurance get sued. Lawyers only sue people who have deep enough pockets to give a large payout.

He said that if a doctor wants to avoid getting sued, he should drop his coverage. And arrange his assets so that they are protected (In Texas you can't loose your house in a lawsuit). If someone tries to sue him, he has his lawyer send a letter to the plantiff's lawyer notifying him of the lack of insurance. He said (once again, he does this for a living), that no lawyer will go through with the suit because he knows that he wont be able to settle out of court, and that he wont be able to get a huge settlement because the doc can just declare bankruptcy.

 

[colbgw02]

The solution you propose sounds a lot like the public workers comp system now in place in some states. All doctors would be required by the state to pay into a fund which would distribute the cost of all bad outcomes (not just negligent ones) across the board.

Isn't this basically what malpractice insurance does?

 

[matt30]

I was talking to a friend of mine who is a defense attorney in a lot of med-mal cases. He said that lawyers don't ever get malpractice suits because they don't carry malpractice insurance. The lawyers who do get malpractice insurance get sued. Lawyers only sue people who have deep enough pockets to give a large payout.

He said that if a doctor wants to avoid getting sued, he should drop his coverage. And arrange his assets so that they are protected (In Texas you can't loose your house in a lawsuit). If someone tries to sue him, he has his lawyer send a letter to the plantiff's lawyer notifying him of the lack of insurance. He said (once again, he does this for a living), that no lawyer will go through with the suit because he knows that he wont be able to settle out of court, and that he wont be able to get a huge settlement because the doc can just declare bankruptcy.

I don't know about Texas, specifically, but the vast majority of states require you to carry liability insurance to practice. Not only that, you'll likely see your # of referrals drop precipitously because other physicians or hospitals could be liable if they refer you to a practitioner w/o insurance.

If you run your practice as an LLC, a judgment could take a portion of the businesses revenue, regardless of whether the state protects personal assets. Same thing with hospitals - regardless of incorporation status.

Most reputable law firms (at least any firm I would be willing to work for) carry malpractice insurance. I would never advise anyone in any professional practice to go without liability insurance.

I would also advise (if i were a lawyer; this post is not legal advise) against putting your cash in an asset protection trust, unless there are particular reasons you need that. First, it's expensive. The most secure type of asset trust - an offshore account with a designated trust protector - is usually only for people making a significant amount of money (think top 1-2%). There are states that allow domestic APTs but they are generally less secure than offshore accounts. Unless your trustee plans on living or doing business only in Delaware (or another state that has this kind of trust) and never leaving, liabilitycould attach if he/she/it goes to another state.

It's also a bad idea because most people can use small claims courts to recover $5,000 - $10,000 without the use of a lawyer. Considering the average MP settlement is $300k, you may be willing to eat the occasional cost. But considering MP insurance costs around $5,000 - $25,000, depending on practice area, it seems worth it if you're in a high risk specialty - especially considering the cost of protecting your personal assets from creditors.

 

[docB]

Isn't this basically what malpractice insurance does?

The problem now is that if you want or need compensation for a bad outcome, whether or not you really believe it was the doctor's fault, the only way to get it is to allege negligence. We need a system where compensation and punishment are not married together.

 

[matt30]

Isn't this basically what malpractice insurance does?

I'm talking about zero-fault liability. If a person experienced a bad outcome, they would go to a government agency to get compensated. The agency would get its funds from doctors paying into the system. The system of insurance would be abolished.

An insurance company today can deny a claim if they think the case has no merit and force the other party to file suit. In the above system, all injuries would be compensated and everyone would be barred from filing suit.

 

[macgyver22]

But considering MP insurance costs around $5,000 - $25,000, depending on practice area, it seems worth it if you're in a high risk specialty - especially considering the cost of protecting your personal assets from creditors.

I'm not sure where you get your information from but this isnt even close, at least not for most of the major population centers. I practice in a suburb in NY. MP insurance for an Internist here is about $30,000. I pay it myself and have shopped around for rates so I know. My wife who practices Ob/Gyn pays $170,000/yr last time i checked. There is no specialty that pays anything close to a 4 digit malpractice premium in these parts or in most other metropolitan areas.

 

[45408]

I'm talking about zero-fault liability. If a person experienced a bad outcome, they would go to a government agency to get compensated. The agency would get its funds from doctors paying into the system. The system of insurance would be abolished.

Wait, why should the doctors have to pay for bad outcomes they didn't cause? The patients should have to pay for those. Everyone who has surgery should pay a fee toward that fund.

My auto manufacturer doesn't pay for my car insurance, and I shouldn't have to pay for my patients' bad outcome insurance.

 

[matt30]

I'm not sure where you get your information from but this isnt even close, at least not for most of the major population centers. I practice in a suburb in NY. MP insurance for an Internist here is about $30,000. I pay it myself and have shopped around for rates so I know. My wife who practices Ob/Gyn pays $170,000/yr last time i checked. There is no specialty that pays anything close to a 4 digit malpractice premium in these parts or in most other metropolitan areas.

It's the 2009 national average.

http://www.needhealthinsurances.com/the-average-cost-for-medical-malpractice-insurance/

 

[matt30]

Wait, why should the doctors have to pay for bad outcomes they didn't cause? The patients should have to pay for those. Everyone who has surgery should pay a fee toward that fund.

My auto manufacturer doesn't pay for my car insurance, and I shouldn't have to pay for my patients' bad outcome insurance.

I didn't advocate that plan buts that how state-run worker compensation works.

 

[macgyver22]

It's the 2009 national average.

http://www.needhealthinsurances.com/the-average-cost-for-medical-malpractice-insurance/

Those averages are wildly distorted and desceptive. They are giving the same weight to a premium that one doctor pays as they do to a premium that a thousand doctors pay. The median MP rates would be far more informative. Very few doctors pay those low premiums because they practice in sparsely populated areas where there are very few physicians. The higher rates apply to areas where population density is greater and there are thousands of doctors. The article doesnt site the source of its information is and the website is an insurance company web site so its validity is somewhat suspect

Unless your going to be practicing in farm country the rates you will be paying will be much closer to what I pay than what those averages are.