A good question was posed on physician forum. Why do doctors treat medical malpractice differently than being in an auto accident? Shouldn’t we just turn it over to our carriers and be done with it?
The reason: The two systems have little in common. First, a med-mal lawsuit is packaged as an assault on your reputation. If you doubt that statement, just read the typical cut and paste summons. It often includes language such as “with willful and wanton neglect” and so on. It’s never couched in language such as “you are a talented doctor who made a mistake. We understand you are human and care deeply about your patients. But, with Mr. Smith, the injury has cost him lost wages and future medical costs.”
Next, the subtext is that you will be tried by twelve lay-persons who know little about medical care – and your future will be tied to a theatrical battle of experts lasting about 4-5 years. And the outcome might very well cost more than policy limits – putting your entire nest egg at risk for ruin.
You will spend a great deal of time preparing for and in depositions – time you could be earning revenue and taking care of patients.
You are told not to talk about the case. It’s stressful to hold matters such as this inside.
You will learn that medical malpractice settlements and judgments correlate more with the amount of injury as opposed to likelihood of negligence. In other words, death, stroke, loss of limb – high likelihood of payout.
You will have to explain your record every time you apply for licensing and privileges.
Settlements and judgments now appear on many state licensing board web sites.
Settlement and judgments are posted in the National Practitioner Data Bank.
You may hear an expert deliver testimony that has never been uttered before. And a jury might find his delivery credible and compelling.
Against admonitions from a judge, jurors might visit various doctor rating sites to see what other patients think of you. Do they rate you as an arrogant, uncaring person who never listens? Or do they say they are thankful you got out of bed at 2AM to save their mother. Think this doesn’t impact a jury’s decision? I think it does.
If you are a doctor in a high risk specialty, there is a 99% chance you will be sued over your career.
The original question was posed in context of a doctor who committed suicide after settling a long, drawn out lawsuit. The deeper question was whether the lawsuit was a contributing factor. Was I surprised a doctor committed suicide over a lawsuit? No. Was he predisposed to depression? I don’t know. But, I know what the law says. It’s called the eggshell theory. You are liable for the patient as you find him. If his skull was as thin as an eggshell, and you negligently cracked it, you’re liable. It doesn’t matter that the same force wouldn’t have dented a normal skull. Likewise, many doctors experience depression for all sorts of reasons. But, the med-mal system is a contributor.
Patients and doctors would benefit from a better system.
There’s another reason for the inequality between a fender bender and a med mal suit: only doctors get sued in medical malpractice lawsuits. Until MJ came along, there was no negative feedback to make a plaintiff or plaintiff’s attorney think twice about suing a doc. It was the equivalent of shooting skeet: the lawyer hollers “pull!” and out comes a defendant. If he hits, great. If not, he calls for another bird.
Now the birds shoot back. A good thing.
Good post.
But I would view it in a slightly different manner. “Reputation” is how the world looks at you. You are smeared by a plaintiff’s lawyer, displayed as a person who is worse than a child molester. And the lying lawyer suffers no grief, no punishment for his lying. He is protected by the court system.
But a malpractice suit is worse than that. It is an assault on your being, an assault on who you are intrinsically. You believe yourself to be a caring person. A well-qualified person. A physician who has worked hard, with as much expertise gained as you can acquire. And you extended all of that to a patient…who is now suing you. So it is an assault on who you are, and you must listen to outrageous remarks to the jury, read nasty untrue words in the printed allegations. And, as noted in the article, your fate will be decided by 6 people who have not even walked in the front door of a medical school.
It’s just another of the several strong reasons to quit working as a doctor.
Well said, Dr. Stecher; very well said. My sentiments exactly.
Above all, the tort system for medical malpractice is a business. It is constructed by and for lawyers and judges. The only relationship you have to this structure is that you are an unwilling participant. Look at our legislators: The vast majority are lawyers. The entire system is constructed by and for practitioners of the legal profession.
The Socratic Method is used in cross examination. Supposedly this adversarial posturing is designed to demonstrate the “truth.” Very few physicians are trained in Socratic dissonance, and are therefore greatly intimidated to find themselves on the receiving end of the discourse. No cross examiner asks a question unless they already know the answer; and they want to elicit that from you to make THEIR point.
The malpractice suit is designed for one and only one purpose: To get money from you/and or your carrier. Everything else is secondary, including your reputation or even the reputation of the plaintiff.
Physicians get into the most trouble when they internalize the suit against them. An interesting object lesson, politics aside is demonstrated by previous presidents’ Bill Clinton and John Kennedy being so able to compartmentalize their sexual relationships with other women. For the better-hood of your mental health, physicians could take a lesson from that peculiar ability from those two masters.
The best ways to fight against malpractice suits before, during or after being exposed to their virus is to learn Socratic Method and practice superb medical record keeping. Above all, take active participation in the suit. Legal counsel hired by your carrier is watching you closely and judging you as actively as plaintiff’s counsel. They will also report to your carrier your suitability for taking the stand in your defense, an adverse report of which could ultimately trigger a settlement against your wishes.
Sign up with Medical Justice and practice what they advise, at best before a suit.
Michael M. Rosenblatt, DPM
Malpractice suits should be renamed. The word itself is distasteful, offensive and delivers significant imagery of negligence when, in fact, there seldom is any.
The word itself, assumes guilt before innocence.
When you say ” I successfully defended my malpractice suit “…or … “my malpracrtice case was dropped” , it still sounds like you were some how guilty of bad madicine somewhere.
To the lay person, the word “malpractice” reverberates in their heads as it does in our. I would like MJ to make a push to rename the word – get it renamed to something like “medical greivance” or “practice claim” or “practice litigation” something more creative, less harsh and so bland that it loses all the bite that the word ‘MALPRACTICE” carries with it.
Can you guys do that ? It would be an awesome triumph for the medical community. Do plumbers get sued ? They sure do get sued for having bad outcomes or unexpected problems – it is just not called MALPRACTICE.
99% sounds like a losing proposition to me. May I suggest that all private practitioners of medicine limit their numbers of high risk encounters. If possible, leave all hospital work for the hospital employees. Do not take ER call, and consider changing your hospital affiliation to “courtesy” privileges.
You walk the path of help day in and day out. Blind to the nature, character, intents and status of those in need. You feel the fire, snakes and whizzing bullets. The rim of abyss is where you walk, the path is worn and crumbles with every step. As in a nazi KZ lager one only hopes you are not the lamb chosen for the daily slaughter. If not you know that day will come and with it the downing of all you have, of those you love. And yet -degraded from a doctor to a mere provider – you smile and hand out help. Sancta simplicitas!
I largely agree with the comments by Dr. Rosenblatt. I tell all of my colleagues to repeat this mantra – “It’s only money.” Doctors take lawsuits way too personally when the truth (99% of the time) is that it’s only about money. The plaintiff attorney is playing a game for the express reason to get some of your money (usually insurance funds). These guys don’t care if you’re a great doctor or a terrible doctor, they just want to put on a show and try to upset you enough to get you flustered or get you to settle. They don’t give a hoot about you and frankly, once the shows over, you’ll be surprised that most of these guys probably like you more than their own client – the plaintiff. When you get sued, deal with it, but don’t let a bad thing become a worse thing – exercise, eat well, sleep well, work well – don’t let these game players get under your skin – they just want your money. And, stay on top of your own attorneys too – unfortunately, the system doesn’t favor a defense attorney making a speedy wrap-up of your case – they can drag things on and try to force you to do things with which you don’t agree. Remember – “it’s only money.”
I think one of the reasons that we get sued is because we contribute to a huge pot of cash (in the form of our insurance company’s assets) that the lawyers and public can get their hands on.
When a criminal shoots and injurs or kills a person, there is usually no cash available to be won in a lawsuit and therefore no lawsuit is filed. If that same person were to die or be injured during the course of receiving medical care, there is a huge pot of money, controlled by our insurance companies, (upwards of hundreds of millions of dollars) that they can access. In most states, we are obligated to buy malpractice insurance, ie pay into this system. If we all quit buying insurance, and there wasn’t a billion dollar slush fund available for the lawyers to get their hands on, would lawsuits go away?
This is a great article. It points out the huge list of fears & worries that we all carry around with us during a lawsuit experience. A mixture of truth and myth. Anyone interested in a brief article that I wrote on Lawsuit Myths let me know. I would be glad to send a copy to you.
I read this article and its replies with great interest. Some thoughts: it takes two to tango. The crisis is equal parts blood- and money-thirsty attorneys and no-good plaintiffs themselves. The latter, according to numerous writings, are often NOT primarily motivated by money, but rather by either revenge or by a desire to “learn the truth” about what might’ve gone wrong when they perceive the physician has hidden something from them.
Furthermore, plaintiffs are unfairly encouraged to sue because they have NO RISK in doing so — the infamous contingency method of plaintiff attorneys. How many otherwise frivolous, or meritless, suits would be avoidable if plaintiffs without solid claims were made to pay their attorneys a retainer fee of $5 or $10,000?