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- Former employee stole patient list. Now a competitor…
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Why Do Doctors Perceive Malpractice Lawsuits Differently Than Other Lawsuits?
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 laypersons 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 the 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 websites.
Settlement and judgments are posted in the National Practitioner Data Bank. Even if the amount is $1. Really.
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 2 AM 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 the 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.
What do you think?
Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.
"Can Medical Justice solve my problem?" Click here to review recent consultations...
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
There is another problem. A malpractice lawsuit can put a medical license at risk. Depending on the state, a settlement or judgment against the physician may precipitate a Board complaint and investigation, which can lead to serious disciplinary action.
What is truly terrible is that the professional societies and organizations that ostensibly represent doctors are not vigorously and effectively pursuing medical malpractice reforms. This is an issue that ranks highly among its constituents for whom they are supposed to advocate. They seem consistently on the wrong side of those issues.
Concur with each of your points, Jeff, and especially the fact that even the most frivolous, trivial case can result in NPDB and perpetual reporting to every entity to which you must apply in order to practice, throughout your career.
Also agree with @Steven Perlmutter. As demoralizing as being judged by a jury of NON peers is to a physician, being judged by a group that is ostensibly composed of peers such as a medical board (most of whom will not know the standard of care in your specialty), that is emboldened by their ostensible higher calling to “protect the public” is even more painful.
Many client physicians being sued come to me more in fear of these self important “peers” than of the plaintiff.
Be sure that your liability coverage extends to regulatory cases against you. (Most do, although it is limited to about $50k) Don’t go it alone.
This article summarizes the current med – mal situation well.
However, I think that the idea that not talking to other colleagues is beneficial is false.
One cannot go 3-5 years without talking about something that takes over one’s life. No one who has ever gone through a med-mal case will forget it. Everyone who is sued in a med-mal case is scarred. It jades you. IT changes your practice. The case affects your relationship with your kids, and spouse. Yes in some case it leads to physician suicide.
What was not mentioned is that when colleagues are given the same exact set of circumstances of behavior of the physicians, with a good result in one case, and a bad outcome in another, there is outcome bias. The physician who had a good result is judged to have done everything right, and the physician who had a bad result is judged by peers to have done something wrong.
As currently set up the med-mal system is a crap shoot, with the only winner being the plaintiff’s attorney who took the case on contingency. A no fault system, would be better. In fact almost any other system would be better. Unless there was outrageously bad behavior on the part of the physician, they should not be judged as being at fault, the event should not be reportable to either the National Practitioner Data bank, nor to the medical licensing board.
One other factor that is almost never mentioned, but which my residency assistant chief used to mention, was that the first victim in a malpractice case, is the truth.
In a malpractice case over a cerebral palsy baby, which the medical literature has clearly shown is NOT an at birth injury, but an in utero event an absolutely damming incident occurred. Six weeks before delivery, the mother fell in the bath tub against the side wall of the tub, enough to bruise her entire abdomen and turn it black and blue. In her deposition she described this as being in the lower abdomen, and that the bruise was about 8 inches long and several inches across. She never reported this to her OB/GYN, though clearly this was a major injury. She sued the OB/GYN, the hospital (for the actions of the respiratory therapist, the pediatrician who was at home 30 miles away, and told the nurses to get the neonatal team to come from a major hospital, the ER physician who came to the code for the baby, and the anesthesiologist, who intubated the baby when no one else could. The baby did not breath from the time of birth, and did not start breathing until 20 minutes after being intubated, which was 20 minutes after the birth (40 minutes from the time of birth). The baby had CP. The mother watched the heroic efforts of the team, because she was in the labor room, but sued everyone anyway. The team was not at fault. CP is not an at birth injury. The lawyers know that. The mother’s injury was the proximate cause. The OB/GYN after three years, and failing health, settled. The hospital settled, and the ER doc settled. When the plaintiff’s original attorney left and another attorney took over the case, the anesthesiologist and the pediatrician were released from the case with no payout on their part. The defense counsel for one of the physician’s was paid $40k for several years of attending depositions, by the malpractice insurance company. The care of the infant was picked up by medicaid. No one won, except the attorneys.
Malpractice needs to be abolished, end stop. If we had unlimited health care resources, maybe but in a country where the cost of becoming ill is so high that half the country can’t afford it, something needs to be eliminated.
We have no issue with protection against liability for judges, politicians, etc. Arguably, their mistakes are far more costly than any physician’s could ever be.
Mistakes and errors are part of life. The current ‘fat pockets’ system doesn’t change this and likely doesn’t even improve it.
Why should one be awarded millions if injured by a physician but get nothing if injured by a blue collar worker without auto insurance and no assets?
Many good comments and thoughts here. I’ve been through 2 merit-less cases, so just to add:
I agree with Retired; you cannot go through the stress without talking to someone, preferably a colleague who has been through the fire. Check with your liability carrier; there may be a Physician Collaboration network that connects you with a sympathetic fellow physician. This really helped get me through my 2nd case.
I stated my cases were merit-less. Both cases dealt with patients who did not follow my well-documented advice. One of them just repeatedly refused to do the chest CT I strongly advised (and documented really well), and wound up dead of massive B/L PEs. Both cases went to court, and resulted in defense verdicts. How did they wind up being cases if they had no merit? Answer: plaintiff’s experts.
True, being tried by a jury not of your peers adds another layer of mental injury to all this, but in my last case, I asked the defense atty to poll the jury after the verdict . He did. Direct quote from my defense atty: “They were really mad at this guy” (this guy being the decedent). So in some cases it may benefit the lay people on the jury to find out what we deal with. Certainly not in the case detailed above by Retired, but in a more conservative venue.