Med mal case question

[PabsMD]

Were the neurologist and neurosurgeon also sued? Did their insurance companies settle?
You mention that there was difficulty getting hold of the neurosurgeon; was that documented?
If you informed the neurologist as per protocol, and the neurologist consulted the neurosurgeon, and the delay was in getting hold of the neurosurgeon, why would you (or the neurologist) even be considered at fault? Especially since there does not really appear to have been a delay at all.

They were also sued, along with the hospital, myself and my EM group. Truly a shotgun lawsuit where everyone was (indiscriminately IMO) included all parties settled.

Yes, delays were documented.

My attorney and insurance carried both agreed that I was not at fault (for what that’s worth). At one point, the daughter of the plaintiff stated something to the effect that it didn’t really matter who was at fault but his total care was very expensive and "someone has to pay." Not to victim blame, but he was non-compliant, unemployed and uninsured and made a sympathetic plaintiff after the stroke. Believe me, this whole thing has been frustrating, confusing and emotionally exhausting. Anyone can really bring a suit for anything and it’s a game of who will settle first as neither side really wants to go to trial (although the overwhelming majority of jury trials find in favor of the doctor). The insurance company wants to get out of the suit as quickly and cheaply as possible and the lawyers seem incentivized to prolong the process as they are paid hourly. As a physician, I was almost a peripheral part of the process, although I can say that my ego was wounded.

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[PabsMD]

I've posted about this subject many times. I'm sorry you missed them, because I agree 100%.

This article was originally a thread and post here on SDN, but I can find it with the search engine. Maybe I deleted it, but EP Monthly agreed to publish it online and so did Kevin MD (with a different title). But here's my take on my first lawsuit (in which I was totally innocent, did nothing wrong and followed the standard of care):

It Didn't Feel Like A Win

I remember reading your story years ago and being touched by all that you went through. Thanks for sharing.

 

[thegenius]

My attorney and insurance carried both agreed that I was not at fault (for what that’s worth). At one point, the daughter of the plaintiff stated something to the effect that it didn’t really matter who was at fault but his total care was very expensive and "someone has to pay." Not to victim blame, but he was non-compliant, unemployed and uninsured and made a sympathetic plaintiff after the stroke. Believe me, this whole thing has been frustrating, confusing and emotionally exhausting. Anyone can really bring a suit for anything and it’s a game of who will settle first as neither side really wants to go to trial (although the overwhelming majority of jury trials find in favor of the doctor). The insurance company wants to get out of the suit as quickly and cheaply as possible and the lawyers seem incentivized to prolong the process as they are paid hourly. As a physician, I was almost a peripheral part of the process, although I can say that my ego was wounded.

I know...it's as if lawyers want to find anybody who is willing to sue over a bad outcome because "someone's gotta pay."

 

[Clean7795]

... I mean, I saw it happen when I was a resident - cards would do the ventriculogram, which would be a big dollop of contrast, and that was adios kidneys. The literature says it doesn't happen, but I saw repeated anecdotes. I'm going to say right here that I am not closely familiar with whatever studies there are.

Or, is it, the amount of contrast from a CT isn't enough to injure you, but, the contrast volume used in cardiology is?

The contrast used is usually very similar. The volume used is sometimes greater during cath but often it is comparable. Most of the basic science literature supports the existence of CIN and combined with the above personal experiences of interventionalists (IC/IR/endovascular surgeons), most nephrology departments still treat it as a real entity. The recent ER/critical care literature dismisses it but I remain skeptical of this literature where all parties involved have a strong incentive in their own practice (i.e. patient through-put, diagnostic assurance) to minimize the effects of CIN.

Though I agree with the rest of the posts in that for patients with real pathology like OP's case (not just a CYA scan), it shouldn't stop the use of contrast.

 

[allantois]

Useless lawyers are going to destroy this country; although the issue is with our lawsuit happy culture at large

 

[WilcoWorld]

the issue is with our lawsuit happy culture at large

I disagree.

Not that our culture is lawsuit happy, but that that this was the major factor in the OP's case. These big settlement cases happen when someone is maimed, but not killed, by their disease. The cost of living with disability in the US is financially devastating, and quite literally - someone has to pay for it. Hence the above statement "the daughter of the plaintiff stated something to the effect that it didn’t really matter who was at fault but his total care was very expensive and "someone has to pay.""

 

[Vandalia]

It is not just the individuals, it is the health insurers as well.

A while back my wife fell and injured her leg. Every month for over a year I got a letter from Tricare asking, "What happened? Are you going to sue? Who is your lawyer? We want our cut."

Since she fell in her own kitchen, they are out of luck.

 

[maxxor]

The contrast used is usually very similar. The volume used is sometimes greater during cath but often it is comparable. Most of the basic science literature supports the existence of CIN and combined with the above personal experiences of interventionalists (IC/IR/endovascular surgeons), most nephrology departments still treat it as a real entity. The recent ER/critical care literature dismisses it but I remain skeptical of this literature where all parties involved have a strong incentive in their own practice (i.e. patient through-put, diagnostic assurance) to minimize the effects of CIN.

Though I agree with the rest of the posts in that for patients with real pathology like OP's case (not just a CYA scan), it shouldn't stop the use of contrast.

As a rad, i think it might exist but it’s very rare. High osmolar arterial injections are the highest risk.

I can say almost zero CTs are done in that manner, contrary to cardiology, vascular surgery, or IR exams.

ACR agrees (starts on page 33).

https://www.acr.org/-/media/ACR/files/clinical-resources/contrast_media.pdf#page37

You know what’s also a large risk factor that gets confused for CIN? Vanc trough being too high as well as tons of other meds we use but forget can have renal problems if dosing is off.

 

[WilcoWorld]

As a rad, i think it might exist but it’s very rare. High osmolar arterial injections are the highest risk.

I can say almost zero CTs are done in that manner, contrary to cardiology, vascular surgery, or IR exams.

ACR agrees (starts on page 33).

https://www.acr.org/-/media/ACR/files/clinical-resources/contrast_media.pdf#page37

You know what’s also a large risk factor that gets confused for CIN? Vanc trough being too high as well as tons of other meds we use but forget can have renal problems if dosing is off.

Patient with HTN, DM, CKD who is on an ACE-I and an ARB comes in with sepsis, has refractory hypotension, requires vancomycin & ICU admission during which they get a CT abdomen with contrast.

When the Cr goes to 2.5...must've been the contrast!

 

[Birdstrike]

These big settlement cases happen when someone is maimed, but not killed, by their disease.

The way in which someone more experienced in this realm explained this to me, is too terrible to tell in a public forum. But it’s true that living with disability with and ongoing bills can lead to some of the highest awards.

 

[southerndoc]

Patient with HTN, DM, CKD who is on an ACE-I and an ARB comes in with sepsis, has refractory hypotension, requires vancomycin & ICU admission during which they get a CT abdomen with contrast.

When the Cr goes to 2.5...must've been the contrast!

Most of us don't bat an eye to order Vanc and Zosyn for people with a creatinine of 3 who are septic. Both are nephrotoxic, probably more so than contrast.

 

[curiousneuro]

They were also sued, along with the hospital, myself and my EM group. Truly a shotgun lawsuit where everyone was (indiscriminately IMO) included all parties settled.

Yes, delays were documented.

My attorney and insurance carried both agreed that I was not at fault (for what that’s worth). At one point, the daughter of the plaintiff stated something to the effect that it didn’t really matter who was at fault but his total care was very expensive and "someone has to pay." Not to victim blame, but he was non-compliant, unemployed and uninsured and made a sympathetic plaintiff after the stroke. Believe me, this whole thing has been frustrating, confusing and emotionally exhausting. Anyone can really bring a suit for anything and it’s a game of who will settle first as neither side really wants to go to trial (although the overwhelming majority of jury trials find in favor of the doctor). The insurance company wants to get out of the suit as quickly and cheaply as possible and the lawyers seem incentivized to prolong the process as they are paid hourly. As a physician, I was almost a peripheral part of the process, although I can say that my ego was wounded.

As a stroke neurologist....I have no words. It sounds like you did everything you could. For what it’s worth, I never bat an eye at getting contrasted studies in patients that we are truly concerned about an LVO (“neurons over nephrons”), but I think it’s crazy that this case was even considered for litigation, never mind settled. Especially for a case in 2015, where the evidence for thrombectomy was not nearly as “gold standard” as it is today for LVO.

 

[WilcoWorld]

As a stroke neurologist....I have no words. It sounds like you did everything you could. For what it’s worth, I never bat an eye at getting contrasted studies in patients that we are truly concerned about an LVO (“neurons over nephrons”), but I think it’s crazy that this case was even considered for litigation, never mind settled. Especially for a case in 2015, where the evidence for thrombectomy was not nearly as “gold standard” as it is today for LVO.

Thanks for chiming in. I agree with your assessment.

I'll repeat my point: It's not about malpractice, it's about our payor system. This unfortunately disabled person required care that will bankrupt most Americans, still "someone has to pay". So, the OP got sued cuz his insurer has "deep pockets".

It's as simple and as complicated as that.

Want to solve Med Mal in the US? Address how much disability costs in the US.

 

[Kryptocoin]

This case is crazy and makes me mad. My heart goes out to the OP. This case won't fly in TX because of med mal caps and strong tort reform. Even California has a $250k cap. Who would want to take a case for that amount?

 

[Apollyon]

Yeah, what sticks in my craw is "somebody's gonna pay!" My wife suffered nerve damage after surgery, and the reviewing doc for the firm concluded, "it happens", and this firm is known and acclaimed for being ethical. So, we didn't get "our day in court". Had we said, "Somebody's gonna pay", the response would have been, "Yeah, and??"

 

[WilcoWorld]

Yeah, what sticks in my craw is "somebody's gonna pay!" My wife suffered nerve damage after surgery, and the reviewing doc for the firm concluded, "it happens", and this firm is known and acclaimed for being ethical. So, we didn't get "our day in court". Had we said, "Somebody's gonna pay", the response would have been, "Yeah, and??"

The meaning is bivalent, and phrasing obviously matters:

"somebody's gonna pay!" implies anger and a desire for revenge - that's unfortunate, unnecessary, and malignant (so I'm glad you and your wife didn't take that tack)

"someone's gotta pay" can also be a simple statement of fact in a case when an unfortunate outcome results in a bankrupting nursing home bill that, as a matter of fact "someone's gotta pay".

 

[anonperson]

Thanks for chiming in. I agree with your assessment.

I'll repeat my point: It's not about malpractice, it's about our payor system. This unfortunately disabled person required care that will bankrupt most Americans, still "someone has to pay". So, the OP got sued cuz his insurer has "deep pockets".

It's as simple and as complicated as that.

Want to solve Med Mal in the US? Address how much disability costs in the US.

That's not entirely true. Then why do people still sue if there is a death?

Medical mal practice lawsuits are based on revenge/anger and are also seen as a lotto ticket.

Why else do you have people suing for non economic damages like loss of consortium etc.

It's a perverted system because it's based entirely on bad outcomes which are inevitable in medicine.

"It is possible to commit no mistakes and still lose. That is not a weakness. That is life." - Star Trek

If you have no bad outcome even if you completely deviated from the standard of care, then basically no lawsuit.

But ain't it a crazy world when a doc can get sued for a non compliant patient having a devastating pathological process that the patient basically contributed to.

Meanwhile, a judge can grant absurdly low bail/no bail to a suspected criminal with a long rap sheet awaiting trial and if they commit a crime in the interim that harms or kills someone, the judge has immunity.

These lawyers have quite a racket.

 

[WilcoWorld]

That's not entirely true. Then why do people still sue if there is a death?

Medical mal practice lawsuits are based on revenge/anger and are also seen as a lotto ticket.

Why else do you have people suing for non economic damages like loss of consortium etc.

It's a perverted system because it's based entirely on bad outcomes which are inevitable in medicine.

"It is possible to commit no mistakes and still lose. That is not a weakness. That is life." - Star Trek

If you have no bad outcome even if you completely deviated from the standard of care, then basically no lawsuit.

But ain't it a crazy world when a doc can get sued for a non compliant patient having a devastating pathological process that the patient basically contributed to.

Meanwhile, a judge can grant absurdly low bail/no bail to a suspected criminal with a long rap sheet awaiting trial and if they commit a crime in the interim that harms or kills someone, the judge has immunity.

These lawyers have quite a racket.

I don't think our positions are in disagreement. I'm not saying that EVERY malpractice suit is about this issue, but that's what the OP's case seems to be about.

 

[Apollyon]

The meaning is bivalent, and phrasing obviously matters:

"somebody's gonna pay!" implies anger and a desire for revenge - that's unfortunate, unnecessary, and malignant (so I'm glad you and your wife didn't take that tack)

"someone's gotta pay" can also be a simple statement of fact in a case when an unfortunate outcome results in a bankrupting nursing home bill that, as a matter of fact "someone's gotta pay".

That is a cogent interpretation, but, it's a clearly adversarial situation, and giving this person the circumspect benefit of the doubt is, in my estimation, generous.

 

[BorntobeDO?]

OP, thanks for sharing this case and generating discussion. I created a similar one a few years back after noticing that nobody ever really talked about malpractice cases on here and I just assumed that nobody had been sued. It's a lonely feeling going through your first malpractice suit and not really having a community or close colleagues that you can talk about it. It lends to a great deal of self doubt, obsessive compulsive rumination over the encounter, perceived guilt, depression and anxiety. Surprisingly, we've had a few threads since then where people seem more comfortable sharing their malpractice history and I think it's been great for people (especially new docs) to see it and know that it's not as uncommon as they might have thought and they most definitely are not alone.

What I don't like to see are a million questions about all the nitty gritty details followed by posters criticizing you for any perceived errors in your management or what they would/would not have done "in your shoes". I don't particularly think that's helpful. I also don't think it encourages people to come forward later and share their own experiences. If anyone has ever been through a suit, you become your own medical and legal expert on the subject matter by the time its all over. Hours upon hours of reading and/or prep for depositions, discussions with your lawyer, etc..

Kudos for sharing and asking for advice. Regarding your original question, I did go through a state investigation regarding an EMTALA case awhile back but it was fairly straightforward and involved me speaking to an investigator on the telephone and that was it. From what you've shared, I don't think I would worry that much about it, especially if every case over 100K is automatically investigated.

In the future, I might suggest getting out of Florida altogether. I have a list of states that I won't consider jobs in d/t malpractice environment, regardless of how nice they might be, proximity to family, etc.. Florida is one of my anathema states, as I call them.

In case anyone is curious, my malpractice history:
Sued twice, settled one for below state reporting limits ~60K. I was dropped from the other.

You mind sharing list of states to avoid and brief reason why? Makes me sad to hear about florida.

 

[robellis]

As someone who is a peer reviewer for my state's medical board, this is probably a no cause for you.

This varies by state, but in Georgia any malpractice settlement with the amount you paid obligates you to report it to the state medical board. It is then assigned to a peer reviewer within your specialty to see if you are grossly negligent in your treatment, documentation, etc. If so, then an investigator with the state medical board will look into it and see if it should be referred to the AG's office for fines and/or other charges (sometimes criminal if it's grossly negligent and you were criminally negligent).

In my many years doing this, I've had one case that a physician was fined (sent someone home before their troponin came back, came back markedly elevated and the physician didn't call the patient back -- he under oath said it was lab error; patient died from an MI 6 hours later). I've had another case where a physician was criminally charged for doing something that was not only grossly negligent, but intentionally caused harm to a patient because the physician could not contain his anger. That physician lost his license and is currently serving time in jail.

For the case you are referring, more than likely you were not negligent at all. Sounds like the patient had a bad outcome from a procedure that you had no control over. It will probably be marked as acceptable standard of care and dismissed.

What’s the physician do to end up in jail?

 

[Siggy]

What’s the physician do to end up in jail?

Apparently using propofol as a sleep aid in a celebrity is one method.

 

[d2305]

Here's a board meeting from Oct. All of the respondents did not meet the standard of care. https://ww10.doh.state.fl.us/pub/me..._Minutes/2021/October/10082021_FB_Minutes.pdf

 

[Groove]

You mind sharing list of states to avoid and brief reason why? Makes me sad to hear about florida.

Just do a search for worst malpractice climates or highest litigation rates for doctors. In general:

1. Arizona
2. New York
3. New Mexico
4. Tennessee
5. Illinois
6. Pennsylvania
7. Nevada
8. Florida
9. Kentucky
10. California
11. New Jersey

I happen to live in Tennessee and although we have higher number of suits, the tort reform and malpractice caps are decent. I'd still probably encourage new docs to avoid the state though.

Florida tried to enact tort reform in 2003, found unconstitutional in 2017 and overturned. I have no idea why doctors continue to practice there.

New York has the highest payouts in the country. Florida is #3.

Pick your state wisely. It has nothing to do whether you are a good doctor or not, remember that. I'd have been sued 5 times over if I lived in Florida and maybe I wouldn't have been sued at all if I lived in Texas.

I had a wise attending in residency who had similar advice when picking a hospital to work and encouraged me to do my due diligence and research whether the public considered it a "good" or "bad" hospital and whether it generated many lawsuits. He told me it doesn't matter how good I practice. If the public considers it a "bad" hospital and it generates lots of suits, my risk of lawsuit goes up, irrespective of whether I did anything wrong or not.

 

[turkeyjerky]

Just do a search for worst malpractice climates or highest litigation rates for doctors. In general:

1. Arizona
2. Indiana
3. New York
4. New Mexico
5. Tennessee
6. Illinois
7. Pennsylvania
8. Nevada
9. Florida
10. Kentucky
11. California
12. New Jersey

I happen to live in Tennessee and although we have higher number of suits, the tort reform and malpractice caps are decent. I'd still probably encourage new docs to avoid the state though.

Florida tried to enact tort reform in 2003, found unconstitutional in 2017 and overturned. I have no idea why doctors continue to practice there.

New York has the highest payouts in the country. Florida is #3.

Pick your state wisely. It has nothing to do whether you are a good doctor or not, remember that. I'd have been sued 5 times over if I lived in Florida and maybe I wouldn't have been sued at all if I lived in Texas.

I had a wise attending in residency who had similar advice when picking a hospital to work and encouraged me to do my due diligence and research whether the public considered it a "good" or "bad" hospital and whether it generated many lawsuits. He told me it doesn't matter how good I practice. If the public considers it a "bad" hospital and it generates lots of suits, my risk of lawsuit goes up, irrespective of whether I did anything wrong or not.

Where'd you get that data from?

I'd always thought Indiana had a pretty favorable environment, for example.

 

[maxxor]

Where'd you get that data from?

I'd always thought Indiana had a pretty favorable environment, for example.

I follow this website.

2021-2022 Executive Summary - Judicial Hellholes

The 2021- 2022 Judicial Hellholes® report shines its brightest spotlight on eight jurisdictions that have earned reputations as Judicial Hellholes®. Some are known for allowing innovative lawsuits to proceed or for welcoming litigation tourism, and in all of them state leadership seems eager to...

www.judicialhellholes.org

 

[turkeyjerky]

I follow this website.

2021-2022 Executive Summary - Judicial Hellholes

The 2021- 2022 Judicial Hellholes® report shines its brightest spotlight on eight jurisdictions that have earned reputations as Judicial Hellholes®. Some are known for allowing innovative lawsuits to proceed or for welcoming litigation tourism, and in all of them state leadership seems eager to...

www.judicialhellholes.org

does that site have any med-mal specific areas? Oftentimes there isn't direct overlap between, for instance, industrial products and med-mal (see California, which, at least on paper, has great med-mal reform).

 

[Vandalia]

Indiana has very strong medical malpractice protections.

Never trust a website with the name "judicial hellholes." It is a front for corporations that wants to weaken employee rights, make consumer bankruptcy more difficult, and make corporate bankruptcy easier.

It is like using an article from HCA for why America needs more EM residences.

 

[Groove]

Where'd you get that data from?

I'd always thought Indiana had a pretty favorable environment, for example.

I just kind of searched around for a combination of "worst malpractice states" and averaged the states to populate the list. I generally look for :

1) Highest payouts
2) Highest rate of litigation
3) Highest malpractice caps or lack of tort reform

I couldn't find the list with Indiana and after doing some searching, it appears you're right in that the malpractice climate is not too bad so I took it off the list. I could be wrong about some of the others, it's been awhile since I really dug into the subject. Sometimes, it can also be misleading. TN has decent tort reform with non economic damages at 750K (sometimes won't show up on a list) yet we have a higher percentage of litigation rates which has to be taken into consideration.

 

[Birdstrike]

Med mal lawyers have adapted to caps by filing more suits. The higher volume compensates for the lower top end potential of any single case. If tort reform isn't done right, you might end up limiting the big dollar awards, but end up getting sued two or three times more often, as lawyers try to compensate with a higher volume of cases.

Never forget who writes the laws that make up "tort reform." They're written by lawyers.

 

[namethatsmell]

OP, thank you for posting. Bringing this ugly side of medicine to light is very important and very humanizing.

While you clearly know this...I'll add my voice to the chorus: you did nothing wrong. The only thing you're guilty of is being scheduled to work, and then showing up, when this pt happened to arrive.

The medmal setup in our country is a farce.

My guess is most every EM doc has, at some point, been threatened with a frivolous suit by patients and/or their families. Even though these threats almost never go anywhere in the legal sense, these interactions always chip away at my desire to continue toiling away in salt mines that much of medicine has become. They add so much extra angst to an already tough job and erodes away already limited free time to instead spend it with lawyers. Even the near misses with suits leave their impression...

A while back a lawyer for a hospital I used to do locums at called me to say I was going to be sued by a patient for discharging them home with a "missed" TIA and they later returned with a stroke. Lawyer started pressing me for details on the spot. Case was from 2 years prior so of course I couldn't recall anything. Told them I couldn't consider replying until they sent me records and I contacted my medmal policy folks. It took 7 weeks to get me records...and I was kept in radio silence the whole time. Turns out, I hadn't seen the patient on their first visit...rather, I'd been the doc on the second visit and admitted the patient. My insurance company was basically like: "no worries we're not going to settle under any circumstances you can't lose...and are you sure you're actually going to be named?" They talk with the hospital...and it turns out the hospital lawyer had called me "by accident." And the chart from the first ED visit demonstrated excellent care and I'd have d/c'd them home too...so had I happened to be working that day I'd have been front and center in the suit. In the end I was never named, which I'm grateful for...but...I probably aged a few years during those months. And this lawyer never had the decency to apologize.

More recently, the family of a patient I saw who went on to have a bad outcome--despite receiving good care--sued the hospital and all the docs who cared for the patient...except for me. Because I happened to have time to visit the patient's room the day after admission before my next shift...and apparently that left a favorable impression with the family. Had I hit the usual traffic on the way to work that day and not had time to stop by...I'd almost certainly have been named. Luck.

After working in a variety of settings over the years, I'm of the opinion that unless I own my contract/practice and thus have some actual control over the system...I have no desire to be the fall-guy for the system when "somebody's got to pay." Terrible nursing ratios / awful hospitalist program with resultant bad outcomes / "faux" subspecialty support / no transfer agreements [ / insert myriad of other system issues well outside a doc's control but often fuels litigation] ???? Sorry, not my monkeys...not my circus. I'd rather wait it out to find a job in a) a practice/location with a favorable medmal environment, b) a hospital that self-insures, and/or c) has the equivalent of sovereign immunity. Nothing else is worth it anymore.

 

[MedicineZ0Z]

Even in retrospect, I wouldn’t change my care. The patient was seen immediately and stroke alerted. Our stroke protocol was to order CT/CTA/CTP (all performed at once after RN performed bedside POC creatinine) and then they would be seen by the stroke neurologist. The patient‘s creatinine was 2.4 so by radiology department protocol, the CTA/CTP was cancelled by the tech. There was an MCA sign on the CT without contrast, the patient was not a tPA candidate and had aphasia and hemiparesis on exam (So he obviously needed thrombectomy even without the CTA).

It seems that there was some difficulty getting ahold of the neurosurgeon (done by stroke neurologist per protocol at this hospital) as this case occurred overnight and then the neurosurgeon blamed everyone else for the "delay" in front of the family and in the chart stating that they were waiting for the CTA and CTP results and that I should have notified them that they were cancelled by radiology. Ultimately, the patient received the thrombectomy within 3 hours of arrival (so it is within the standard of care) but had a poor outcome as a very large clot was removed from the MCA and he had no collateral blood flow. The plaintiff had no quality of life due to his debilitating stroke and the family was very angry and sued everyone involved in his care. A debilitated plaintiff is very sympathetic so we settled without going to trial.

I hate the boogeyman fear of IV contrast when it's clearly necessary. I've CT'd lots of people with 2.x creatinine, never had it go up, and caught lots of crucial things.

How come you weren't pulled and why not go to trial? I know a lot of that isn't your choice btw.

 

[southerndoc]

Patients are landmines. You never know which one you're going to pick up that sues you.

 

[PabsMD]

Patients are landmines. You never know which one you're going to pick up that sues you.

I remember an attending telling me in residency "the cases that involve a suit are never the ones that you suspect." They were right and I now try to document every chart as if the case will one day be reviewed. This includes shared decision making with patients and their families, the timeline of the ED visit and direct quotes from patients.

 

[PabsMD]

Med mal lawyers have adapted to caps by filing more suits. The higher volume compensates for the lower top end potential of any single case. If tort reform isn't done right, you might end up limiting the big dollar awards, but end up getting sued two or three times more often, as lawyers try to compensate with a higher volume of cases.

Never forget who writes the laws that make up "tort reform." They're written by lawyers.

Wow, I’m sorry that you experienced this. Regarding the feeling of "radio silence," I found that months went by where I didn’t receive any kind of update on the case and this lead to a low-level constant feeling of dread/anxiety. Truly a terrible system in which we practice.

 

[PabsMD]

I hate the boogeyman fear of IV contrast when it's clearly necessary. I've CT'd lots of people with 2.x creatinine, never had it go up, and caught lots of crucial things.

How come you weren't pulled and why not go to trial? I know a lot of that isn't your choice btw.

When you say, "pulled" do you mean dropped from the suit? I really feel that the family was out for revenge.

About mid-way through this process (2017-2021), we attended mandatory mediation. The plaintiff’s family felt certain that this was a slam-dunk case and declined to settle, stating that they would never settle and planned to take this "all the way." They wanted the insurance cap of 1M from both myself and the democratic group that I worked for (total perceived jackpot: 2M). My attorney and the representative from our med mal insurance company thought that this was ridiculous and stated they’d never give more than 200k.

At the mediation meeting, I was told by the insurer that the decision to settle or go to court was ultimately mine BUT since the insurance company was willing to pay a maximum of 200k, if the judgement against me was in excess of 200k, I would personally be responsible for the excess amount. I would hope if we went to trial that a jury would see how ridiculous this situation was but ultimately didn’t think that my pride was worth the risk so I signed away the right to decide and from that point on the decision to settle vs. go to court was not mine.

The process dragged on for years, the plaintiff passed away and we had several court dates that were delayed due to CV-19 in the interim. The plaintiff’s attorney called the insurer this month, asked if the 200k was still on the table and the matter was settled.

 

[nexus73]

When you say, "pulled" do you mean dropped from the suit? I really feel that the family was out for revenge.

About mid-way through this process (2017-2021), we attended mandatory mediation. The plaintiff’s family felt certain that this was a slam-dunk case and declined to settle, stating that they would never settle and planned to take this "all the way." They wanted the insurance cap of 1M from both myself and the democratic group that I worked for (total perceived jackpot: 2M). My attorney and the representative from our med mal insurance company thought that this was ridiculous and stated they’d never give more than 200k.

At the mediation meeting, I was told by the insurer that the decision to settle or go to court was ultimately mine BUT since the insurance company was willing to pay a maximum of 200k, if the judgement against me was in excess of 200k, I would personally be responsible for the excess amount. I would hope if we went to trial that a jury would see how ridiculous this situation was but ultimately didn’t think that my pride was worth the risk so I signed away the right to decide and from that point on the decision to settle vs. go to court was not mine.

The process dragged on for years, the plaintiff passed away and we had several court dates that were delayed due to CV-19 in the interim. The plaintiff’s attorney called the insurer this month, asked if the 200k was still on the table and the matter was settled.

…and I added all the patients family members to a physician listserv of litigious people so future doctors could make sure to provide excellent and special attention to make sure they get the most optimal medical care in the future.

 

[bravotwozero]

…and I added all the patients family members to a physician listserv of litigious people so future doctors could make sure to provide excellent and special attention to make sure they get the most optimal medical care in the future.

Is this listserv really a thing?

 

[MedicineZ0Z]

When you say, "pulled" do you mean dropped from the suit? I really feel that the family was out for revenge.

About mid-way through this process (2017-2021), we attended mandatory mediation. The plaintiff’s family felt certain that this was a slam-dunk case and declined to settle, stating that they would never settle and planned to take this "all the way." They wanted the insurance cap of 1M from both myself and the democratic group that I worked for (total perceived jackpot: 2M). My attorney and the representative from our med mal insurance company thought that this was ridiculous and stated they’d never give more than 200k.

At the mediation meeting, I was told by the insurer that the decision to settle or go to court was ultimately mine BUT since the insurance company was willing to pay a maximum of 200k, if the judgement against me was in excess of 200k, I would personally be responsible for the excess amount. I would hope if we went to trial that a jury would see how ridiculous this situation was but ultimately didn’t think that my pride was worth the risk so I signed away the right to decide and from that point on the decision to settle vs. go to court was not mine.

The process dragged on for years, the plaintiff passed away and we had several court dates that were delayed due to CV-19 in the interim. The plaintiff’s attorney called the insurer this month, asked if the 200k was still on the table and the matter was settled.

I see. I actually don't know some of the details. But is there not a way to ask a judge to drop you from the suit? Or is it something that the other side has to agree to?

What I mean is, if the lawsuit is truly ridiculous - like you are named for something that is absurd (at least in the context of your scope of practice and involvement). Is there no process for you to be dropped by a judge or someone neutral? Or is it 100% that plaintiff must agree OR go to trial with jury?

I understand my question only applies to your state.

 

[southerndoc]

I see. I actually don't know some of the details. But is there not a way to ask a judge to drop you from the suit? Or is it something that the other side has to agree to?

What I mean is, if the lawsuit is truly ridiculous - like you are named for something that is absurd (at least in the context of your scope of practice and involvement). Is there no process for you to be dropped by a judge or someone neutral? Or is it 100% that plaintiff must agree OR go to trial with jury?

I understand my question only applies to your state.

Judges can only drop you from litigation if the defense files a motion for summary judgement and the judge agrees. It doesn't happen that often. If that isn't done, dropping you is only at the plaintiff's discretion.

 

[Siggy]

Judges can only drop you from litigation if the defense files a motion for summary judgement and the judge agrees. It doesn't happen that often. If that isn't done, dropping you is only at the plaintiff's discretion.

…and motions for summary judgements are decided giving the best light to the complainant arguments. It’s basically a “even if everything the complainant says is true, it still doesn’t cause liability.”

 

[DoctorMD1]

They were also sued, along with the hospital, myself and my EM group. Truly a shotgun lawsuit where everyone was (indiscriminately IMO) included all parties settled.

Yes, delays were documented.

My attorney and insurance carried both agreed that I was not at fault (for what that’s worth). At one point, the daughter of the plaintiff stated something to the effect that it didn’t really matter who was at fault but his total care was very expensive and "someone has to pay." Not to victim blame, but he was non-compliant, unemployed and uninsured and made a sympathetic plaintiff after the stroke. Believe me, this whole thing has been frustrating, confusing and emotionally exhausting. Anyone can really bring a suit for anything and it’s a game of who will settle first as neither side really wants to go to trial (although the overwhelming majority of jury trials find in favor of the doctor). The insurance company wants to get out of the suit as quickly and cheaply as possible and the lawyers seem incentivized to prolong the process as they are paid hourly. As a physician, I was almost a peripheral part of the process, although I can say that my ego was wounded.

Can you refuse to settle and go to rial? Is it an option?

 

[thegenius]

Can you refuse to settle and go to rial? Is it an option?

I think you can. The lawyer works for you. But do you want a lawyer judicating on your behalf when he doesn't want to?

 

[southerndoc]

Can you refuse to settle and go to rial? Is it an option?

It varies by insurer, but for the most part, if the insurer wants to settle and you don't, several things could happen. You could be liable for any verdict above what they offered to settle on. You could also have to pay for your own attorney.

 

[Dr Mantis Toboggan]

Can you refuse to settle and go to rial? Is it an option?

My insurer gives you one lawsuit to take to the end if that’s what you want. After the first, they reserve the right to settle.

 

[Siggy]

Can you refuse to settle and go to rial? Is it an option?

Sure, but generally the insurance company won’t cover the verdict past their settlement amount.

Also, at least in Florida, if you turn down a settlement offer and lose more, you can be on the hook for the complainant’s lawyer fees (source: wife does insurance defense).

Insurance lawyers are incentivized to settle. It’s often better for the insurance company to settle for $30,000, than to spend $20,000 to take a case to trial and risk losing. So often they’d rather settle a BS complaint instead of risking a trial.

The respondent lawyers are paid hourly. The complainant lawyers are often on contingency.

Our malpractice record that we have to report when asking for credentials or as displayed when people look up our license online is irrelevant to the insurance company.

 

[namethatsmell]

I think I've brought this up on this forum before...but in case not...

Gven the realities of our medical "system," it's exceedingly rare for an individual doc to be the sole responsible party (if at all) when genuine malpractice occurs. The vaaaaast majority are multifactorial system issues that docs have no meaningful control over.

Current medmal system is far from just, and highly inefficient in terms of getting injured parties compensation in a consitant or timely fashion. Most of the country would benefit if the current medmal system was abolished and replaced with state or federally administered no-fault funds to issue appropriate compensation to patients, similar to other countries. But of course that won't happen because the lawyers would lose their golden goose. So, in the absence of that...

There's a massive opportunity for the huge evil CMGs and hospital corps to self-insure and make a habit of getting their docs removed from cases (provided the doc didn't do anything intentional/egregious). It is literally win-win-win: CMGs / big corps win by seeming less evil and they actually breed loyalty amongst their docs (and saves them $$ by increasing physician retention and need to recruit/rehire), lawyers (and to a lesser extent, patients) still get their cut, and docs and the country wins by perserving the sanity and will to keep practicing of experienced front line physicians who are increasingly leaving clinical medicine due to all the insane bull**it.

 

[southerndoc]

Insurance lawyers are incentivized to settle. It’s often better for the insurance company to settle for $30,000, than to spend $20,000 to take a case to trial and risk losing. So often they’d rather settle a BS complaint instead of risking a trial.

Going through litigation now that we plan to take to trial (highly defensible). I was told it takes about $100,000 to get something through trial. My insurer is refusing to settle and I'm glad.

 

[Vandalia]

Can you refuse to settle and go to rial? Is it an option?

Sure. However,

First, an insurer has a duty to attempt to obtain a settlement within policy limits. As alluded to in several other posts, if you chose to go to trial you could be liable for any amount above the settlement they negotiated. This would depend on the law of that state as well as the specifics of the insurance contract.

Second, in certain states, if a party rejects a settlement and receives a less favorable verdict at trial, they become liable for the other party's attorney fees. This is an exception to the "American rule." Again, depending on state law and the contract, you could be personally liable for that amount.

There was a story about ten years or so ago, about a family in Colorado (I believe) who argued their kid was injured at birth. They rejected (making up numbers) a settlement for $100K and received a jury verdict of $50K. They received that, but also received a bill for around $500K for the defense costs, ending up in bankruptcy. The American legal system - both criminal and civil - HATES trials and encourages everyone to settle (plea-bargain.)

So in the example above, if the insurer negotiated a settlement for $200K, and the jury returned a verdict for $300K, you could be liable for both the $100K difference, AND all of the plaintiff's attorney fees, which would be well into the six-figures.

For those interested in such things, there was an interesting case out of West Virginia decided by their state Supreme Court last month. A physician was sued for malpractice and a jury awarded just under $6M. As happens 99.999% of the time, the plaintiff settled for the policy limits after the verdict but before the judgement was entered. However, the verdict received media coverage, and based on that one of his patients decided to sue for malpractice as well. That settled within the policy limits. He then sued his insurance company arguing that they had a duty to settle before trial, and he was injured by the publicity resulting from the verdict. The WV Supreme Court did not buy it.

http://www.courtswv.gov/supreme-court/docs/fall2021/21-0169-walker-p.pdf

 

[The Knife & Gun Club]

Good tips. An option worth considering would be to do locums in a more malpractice friendly state. Doing a couple short stretches or one long one and then flying home each month might not be so bad. Florida sounds like an absolutely miserable place to practice.

I’m graduating in Florida next year and have been thinking of similar setups since my wife’s residency is going to keep us based here for another few years.

Right now I’m thinking Texas or Indiana are the best bets, but would be curious if you have any other places you’ve found favorable med mal climates and rates.