Surviving a Medial Malpractice Suit
When I talk to pre-med students they are all worried about the same thing: what about getting sued as a doctor. As horrible and gut-wrenching as this experience can be, you should take solace in some data about physicians and medical malpractice suits.
You are more likely to lose significantly more money in a divorce or a bad investment than in a medical malpractice lawsuit. (Female physicians are much more likely to go through a divorce than their male counterparts.)
Physicians are not sued that often, and when they are, they usually do not lose the case. Going through the process of a medical malpractice lawsuit is arduous and can take several years until a resolution is met. One of the best things you can do is to learn more about the process and be proactive in your defense.
Just the Facts, Ma’am
Approximately 7.4% of doctors are sued every year. The good news is that of those cases, only 22% result in having to make payments to the plaintiffs. Medscape quoted in their 2015 Medscape Malpractice Report that 80% of physicians are sued by age 60.
In a Medscape Malpractice Report in 2017, there were some good numbers that we should unpack:
Most lawsuits will last more than a year, but less than 5 years.
Almost half of the physicians who answered the survey stated they had been named in 2-5 suits.
Most physicians are named in a group of people in the lawsuit.
The two most common reasons for the suit was a failure to diagnose and complication from treatment/surgery.
81% of physicians who were sued had to give a deposition for the case.
58% of physicians were “very surprised” and 29% of physicians were “somewhat surprised” by the lawsuit.
33% of physicians who were sued spent 0 hours (none) in court and trial-related meetings
33% of physicians who were sued spent more than 40 hours in defense preparation
30% of physicians who were sued had the case settled before the trial started.
Only 3% of lawsuits will result in a verdict in the plaintiff’s favor.
At these rates, you should expect to be sued at least once during your career. However, if you are sued, it is unlikely that you will end up having to pay the plaintiff.
What you will Feel
You will feel
- shame
- betrayed
- worried about losing money
- that all the time you spent working to become a physician was a waste.
- worried about losing your medical license or getting credentialed at another hospital.
- guilty for the outcome.
You might blame yourself or want the lawsuit to just go away. This might lead you to make the wrong choices as to what you should do.
You will probably go through the five stages of grief: denial, anger, bargaining, depression, acceptance.
- Know that while you are going through these emotions, the lawyers are not. You will take this personally because you are a perfectionist and you have been trained to be a physician. You will feel like you are being personally attacked. For the lawyers involved, it will be another day at the office. You need to rely on your defense attorney to help make decisions for you. You will be in a very vulnerable place, mentally.
- Lawsuits in the Age of Social Media
Physicians are humans and we will make mistakes. Now with the advent of social media and bloodthirsty reporting, the chances are increased that if you have a poor patient outcome, you will see it in the media.
To make matters worse, you will not be able to defend yourself in social media because of HIPPA. You will not be able to tell your whole side of the story, or even correct the facts that will likely be wrong.
What it is really about
This is really a horrible psychological game of mental anguish. Expect them to attack your practice as a physician. You will take this personally because so much of your identity is tied to your profession. At every turn, the plaintiff attorney is trying to wear you down so that you give them what they want: your money. That is their job, to extract the maximum amount of money out of you, regardless if you were at fault or not.
Step 1 – When you are Sued, Don’t Panic
Panicking can make things harder on you and your defense. Everyone does dumb things when panic sets in … physicians are no different. There are three things you should not do when you are named in a lawsuit:
Don’t talk with the patient’s lawyer. You may feel the need to try and “smooth things over” by talking with him/her. They will try and become your buddy, to “help you through the lawsuit”. Do not trust the patient’s lawyer. They are not your friend. The other lawyer is trying to get you to either admit to wrongdoing or settle out of court. You have a huge target on you and they are trying to speed up getting to your money. No matter what they want, it will never be in your best interest. Only talk with them with your lawyer present.
Don’t try to amend the patient record in any way. They already have copies of all of the patient records by the time you are served with a notice for the lawsuit. Trying to alter the record in any way will give the impression that you are hiding something.
Don’t try to hide your money. The opposing attorneys have already obtained a list of all your assets and liabilities. They know how much medical malpractice insurance you carry and where all your assets are. Trying to give money to a relative, or move it offshore is a recipe for financial disaster. Your asset protection plan should be in place long before the suit is filed. Any actions you take after the lawsuit is filed can be reversed by the courts.
Step 2 – What You Should Do
Then what should you do in a lawsuit?
Breathe. Remember that the lawsuit is a business transaction and not a true reflection of you as a physician or a person. Also remember that although the road can be long, the suit is not likely going to be a financial catastrophe for you.
Contact your attorney. You will want an attorney that is different from the hospital attorney, because there may be a conflict of interest. Loop your lawyer in early to the lawsuit.
Be completely honest with your attorney. Withholding information from her will not help you. Your attorney will be formulating a defense and if you are not completely honest, you might leave the door open for a hole in your defense. Your attorney should never be surprised by information told to them by the plaintiff’s attorney.
Learn as much about the process as you can. Learning what to expect will help you play the game better. Just like patients read up on their disease before they come to you for an opinion, it is your turn to read up on medical malpractice litigation.
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