Medical malpractice lawsuits are public records. And sometimes they make the news. Sometimes they’re online. If a case was filed in court, it’s accessible to the public. (Arbitration agreements, on the other hand, are private matters. That’s another story for another day.)
Say you’ve scheduled a surgery on a new patient. You go over the risks, benefits, and options.
They come back to speak with your staff about process, payment, recovery…more details.
They have one final question.
They want to know about a medical malpractice lawsuit from ten years ago.
Is this a red flag? Idle curiosity? Something else?
If the old case was based on the same type of surgery that generated the litigation a decade ago, the new patient may just be worried about the risks of this procedure. That seems reasonable. If they believed you were really unsafe, they likely would have already cancelled the case and gone elsewhere. They wouldn’t be asking questions.
This is probably a good time to double down, again discussing the risks of the procedure, and explaining what could happen.
Sometimes a patient will not appreciate what is meant by probability. If you say the risk of a specific complication is 3%, that only applies to a population of patients. A specific patient will either experience the complication. Or they won’t. To the specific patient, individual risk instantiated in the real world is either 0% or 100%.
Importantly, the patient is asking you about this specific risk. This is an excellent opportunity for the patient to revisit what their tolerance for risk actually is. Every patient is different. Some can accept a low risk. Others cannot.
Of course, you’ll want the patient to understand that most complications are not de facto evidence of professional liability. That’s the reason the informed consent process is important.
So, in my estimation, their inquisitiveness is not a red flag. It’s a good time to educate.
What do you think?
Jeff:
Definitely presented from the attorney’s perspective.
I think two other major factors need to be looked at.
One from the business side.
Two from the relationship side.
From the business side, if you have a patient that went so far as to start looking up your malpractice history, and seeing only a single case, asks you about it, that is a red flag. Why would you want to do business with someone that is already not necessarily favorably disposed to you. What would happen if you have some sort of adverse result, no matter how minor? Is this patient going to be favorably disposed toward you?
Are you that hungry for the business?
Are you willing to take that risk?
From the relationship side, citing different sources, having a strong relationship with the patient lessens the risk of a malpractice case, tremendously. What relationship have you developed with this patient. Was this all just transactional information about the procedure?
Did you talk about how the malpractice case 10 years ago changed your life, made you much more cautious, made you lose two years of your life, and affected your family deeply. Did you ask if the patient had personally experienced malpractice in their life? How did it affect their friends, family, etc. Were they a juror on a malpractice case?
In sales, such a question might be considered an objection. But what is the patient objecting too. One must dig deeper to find out why the patient is asking the question, above and beyond just the malpractice case itself.
If we go back prior to the 1970s and the first wave of the malpractice crisis, we had a different generation of physician that had relationships with their patients on a neighborhood, or family friend, or church level. Patients took bad outcomes in stride, knowing that their doctor cared about them and had done the best that they could do.
That is what is missing today. Relationships have become totally transactional. That doesn’t bode well for patient tolerance of errors or mistakes.
Agree to disagree. If I’m referred to Dr X and know nothing about said practitioner, of course I’d do an online search. If there are multiple red flags, I’d likely ask my primary about why this referral is an assumed good fit for me.
Now, if there was only ONE incident about 10 years ago, I’d let it go. There is a small percentage of the population that not even God could make happy. In the example given, I’d tell the client that “was a case even God could not make happy. How has your life been over the past 10 years?”
Uncommon complications are very common in those affected…
Due to the physician shortage (and the huge influx of undocumented people entering the US, seeking healthcare), it is getting more and more difficult for US Citizens, even with excellent insurance coverage, to find a surgeon who can operate them without a long waiting period.
Some people like to use online resources to check out doctors (and other services/commodity) providers. They are bound to find out if you had a lawsuit against you that ended up in Court. Even though I was a surgeon, I never had anyone ask me about this. Fortunately, I never had to go to court about anything. Maybe they just couldn’t find out “what I had.”
It has to come to mind that some of these people who are curious about your previous “problems” are litigious. If they have pre-existing conditions, are a class 3-5 patient with multiple organ abnormalities and/or personal destructive habits, perhaps it is better to refer them out.
If you are a bone and joint surgeon, you know the data on delayed healing for smokers. This includes POT. Sometimes it is necessary to politely jettison risky patients. It’s hard to find the right “language” to do this, but you should have a pre-drawn plan:
I would not risk treating patients with very severe circulatory disease. Rather, I referred them to a local hospital. I (honestly) explained that anything I did for them would probably result in an amputation due to their smoking history.
When a potential surgical patient asks you about your previous lawsuits, I think they fit that category.
Michael M. Rosenblatt, DPM