How to Avoid Being Surprised by a Medical Malpractice Lawsuit

Surprise! You’ve been sued.

I recently read a late-2015 study about physicians’ perceptions of medical malpractice lawsuits.  The results surprised me — specifically the interplay of these 3 facts:

1.      The most common reasons for a medical malpractice lawsuit include injury or death during surgery or childbirth, or misdiagnosis of cancer.
2.      The vast majority (70%!) of doctors who are sued for medical malpractice report feeling surprised.
3.      If given the chance to change something about the encounter which gave rise to the lawsuit, most doctors (51%) say they would change nothing.

I talk a lot about patient advocacy, and the overdue need for a shift to a relationship-centered model of care.  The provider-patient dynamic has long been plagued by paternalistic decision-making, timid patients, and communication failures.  I believe that the system is the problem, not the people who comprise it.  And the system is inextricably linked to the insurance companies, the business of hospital management, and the exhausting balancing of practice profits against patient savings.

It’s also my firm belief that healthcare providers are well-intentioned.  Period.

When good intentions don’t translate to good results.

I recently received a note from a former provider who had heard me on Dr. Karen Litzy’s podcast (check that out here).  That provider wanted me to know that they cared and still care about me.  They hoped that they weren’t part of the problem that I’ve been talking about.  It’s an understatement to say that the note meant a lot to me.

Believe it or not, I felt guilty as I read it – had I maligned my former providers, who had good intentions even if they didn’t help me? Are good intentions good enough?  Well, no.  In healthcare, they’re not.

I remain committed to sharing the truth of my journey with persistent pain through a very broken healthcare system.  But I knew these providers well, those with whom I passed dozens of hours, and I don’t want to hurt their feelings.  They gave of their skill, energy, and compassion.  But their good intentions are indivisible from my relentless experience with pain and their ultimate inability to help.  Sometimes, their good intentions were most indivisible from the fact that they made me worse – they cared so much that they didn’t see they were doing harm, rather than good. 

But that apology meant a lot to me, and it makes me feel like the voice I’ve given my pain was heard by that provider.  And while I’m doing my best to not step on toes, hindsight is 20/20, and I’ll continue sharing my experiences in an honest way that will hopefully effectuate change for others in pain.

“I wouldn’t change a thing.”

51% of the doctors who were sued said that they wouldn’t change a thing about that patient encounter.

Perhaps this is because they were well-intentioned in treating that patient.  When they recall the encounter or surgery, they remember their actions as compassionate, logical, and supportive.  Say, for example, that a baby suffered injuries during childbirth resulting in birth defects (Ob/Gyns are the most frequently sued doctors).  The new parents file suit, and the physician is surprised.

“YES, the baby suffered injuries.  But there’s nothing I could’ve done differently!”

Good intentions on trial by “truly hated” lawyers.

Good intentions don’t trump good results, especially when someone’s injured or killed.  The physicians’ responses to malpractice suits, and their suggestions for changing the way malpractice cases are tried, reflect their desire to defend their good intentions.  But some of their ideas about how to treat medical malpractice lawsuits are downright unsettling.

To discourage lawsuits, physicians had some suggestions:

(1) cases should be pre-screened for merit by medical panels,
(2) damage awards should be capped,
(3) cases should be tried before special “health courts,” and
(4) lawyers shouldn’t be allowed to take cases “on contingency”

To me, the biggest problem with these suggestions is that they all aim to insulate the physician from the consequences of his conduct.  Theoretically, medical panels and health courts would be more sympathetic to physicians than regular courts; they would give due weight to a doctor’s good intentions.  Regular courts are scary, risky places – they’re where one is tried by a “jury of his peers,” i.e. other human beings, who may or may not be physicians.  I’m hinging my hope on the trailblazing 13% of respondents who thought that the best way to discourage lawsuits is that “doctors should stop making medical errors.”  Yeah, doctors are human.  But if you don’t want to get sued for malpractice, the best thing to do is to avoid committing malpractice.

Patients’ lawsuits are brought by plaintiffs’ lawyers.  These attorneys typically represent medical malpractice plaintiffs on a contingency basis, meaning they earn a percentage of the patient’s damages award as their fee.  They front the costs of the lawsuit, and if they lose the case, they earn no fee.  Injured patients often view these lawyers as, quite literally, their advocates.  What do doctors think about them?  Well, a third of physicians surveyed agreed with the statement: “I truly hate them.” 

So disappointingly, the doctors’ desire to be understood isn’t a two-way street.  While physicians are altruistic and well-intentioned, and we should remember that they’re only human when mistakes are made, their patients hire lawyers who are hate-worthy.  A third of physicians admitted to hating their patients’ advocates.  That seems like a double-standard.  It unfairly maligns a patient who, injured due to no fault of their own, seeks some recourse and healing.

The “I’m sorry” glitch.

81% of physicians sued reported if they had told the patient “I’m sorry” after making a medical error, it would not have helped the situation.  And, 12% reported that they would never have taken on that patient.  They also talked about how they suffered long-term emotional effects from being sued, and that they no longer trust patients.

These responses feel so creepily void of empathy that they momentarily shake my trust in our healthcare system. 

The human being and former patient in me wants to say: “apologize when you screw up, admit mistakes, and be empathetic!” And the lawyer in me says: “don’t admit liability, and call me if you screw up!”  So, I understand the tension that physicians feel.  But, I think that understanding the other party’s perception of the situation – whether that be the well-intentioned physician or the injured patient – helps humanize all involved and, hopefully, keeps words like “truly hate” and “distrust” out of the conversation.

For further reading on this:

Carol Peckham, Medscape Malpractice Report 2015: Why Most Doctors Get Sued (Dec. 9, 2015), http://www.medscape.com/features/slideshow/public/malpractice-report-2015.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.