The specter of medical malpractice lawsuits looms large for many clinicians, but according to Mark Brown, MD, JD, this anxiety may be disproportionate to the actual risk. In this discussion, we explore the contrasting nature of law and medicine, the unpredictable and capricious nature of legal proceedings, the systemic elements that fuel the high number of medical malpractice lawsuits in the United States, and several practices to reduce the risk of lawsuits.
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Mark W. Brown, M.D., J.D., holds a JD from Harvard Law School (1970), and an MD from Dartmouth Medical School (1982). His career includes roles in the Los Angeles District Attorney’s Office, criminal defense practice, and teaching law at Southwestern School of Law. In medicine, he completed his internship and residency in Emergency Medicine at Presbyterian Hospital, San Francisco, and UCLA and is currently an emergency physician at Antelope Valley Medical Center and clinical faculty member at UCLA School of Medicine.
The Fundamental Difference Between Law and Medicine
- Clinicians often have heightened anxiety about medical malpractice.
- Medicine is guided by natural laws and science, unlike the law, which is based on persuasion and perception.
- The legal system focuses on how facts can be perceived rather than the facts themselves.
- Legal outcomes can seem capricious and uncertain, causing worry for doctors.
- The law is less about clear rules and more about how arguments are presented in court.
Should you be worried about the National Practitioner Data Bank?
- The Data Bank’s impact is often perceived as greater than it is.
- It acts more as a formality in medical licensure or hospital privileges applications.
- The fear of the Data Bank is can be greater than its actual influence on a clinician’s career.
- The Data Bank is often not a deal-breaker in hiring decisions.
Can Getting Sued Lead to Getting Sanctioned by the Medical Board?
- Fear is prevalent among clinicians about being labeled incompetent by the government or medical system.
- The outcome of a lawsuit doesn’t directly lead to sanctions but could trigger a Medical Board review, but if there is egregiously poor care, the case may be reviewed by the Board
- A sense of being vulnerable to external judgment and labeling.
- The actual process of being sued is more likely to cause distress than the outcome itself.
The Odds of Getting Sued
- ER doctors face a lawsuit approximately once every 20,000 patient visits.
- Most lawsuits against doctors are either dropped or settled.
- The chances of losing a jury trial in a clinician’s career are very low.
- The rarity of lawsuits reaching a jury trial stage and resulting in a loss for the doctor.
Three Reasons Why The US Has So Many Malpractice Suits
- Unique jury system in the U.S. for medical malpractice cases.
- The absence of the English rule (loser pays) in the U.S. lowers the barrier for filing lawsuits.
- The practice of contingency fees in the U.S. incentivizes lawsuits.
- A combination of these factors leads to more malpractice suits in the U.S.
Should You Push For Settling a Lawsuit?
- Doctors and insurers often have different motivations regarding settlement.
- Doctors seeking vindication may prefer to fight an unjustified case.
- It’s essential to collaborate with insurance carriers on settlement decisions.
The Plaintiff’s Attorney Is Not Your Friend, Even If They Act Like It
- Plaintiff attorneys aim to make doctors look bad in court. They may appear friendly and understanding but have an agenda to pursue.
- An attorney’s deconstruction of your care can feel degrading.
- The process can be more about positioning for legal advantage than truth-seeking.
When the Doctor’s Med Mal Fear Supersedes the Patient’s Risk Tolerance
- Doctors’ malpractice fears often exceed patients’ risk tolerance. This can impact care and even cause harm.
- Physicians’ decisions are sometimes influenced more by fear of litigation than patient needs.
What’s Really Happening in a Deposition
- Depositions are the trial before the trial. The subtext, however, is that they’re also about assessing how a doctor will appear in court.
- Importance of being calm, articulate, and non-defensive during depositions.
- Lawyers use deposition to gauge a doctor’s likability and credibility.
- Being defensive or rattled in a deposition can negatively influence case outcomes.
- Depositions are as much about temperament and presentation as they are about facts.
High Yield and Low-Cost Ways to Reduce Med Mal Risk and Anxiety
- Staying up-to-date with medical knowledge and practices reduces risk.
- Good bedside manner and patient relationships are crucial.
- Following up with patients can significantly mitigate risks.
- Sit down when interviewing patients
There’s a Big Ticket Item That Your Documentation Doesn’t Capture
- Documentation doesn’t capture much of the intuitive, non-verbal information in patient encounters.
- Charts can’t fully convey the nuances of a physician’s intuitive assessment.
- Reliance on documentation can misrepresent the actual clinical scenario.
What to do About Hindsight Bias
- The tendency to view past events with the knowledge of their outcomes.
- Hindsight bias affects everyone involved in a legal review, including the physician.
- Educate Legal Parties About Clinical Decision-Making: Emphasize to jurors and legal professionals the nature of clinical decision-making, which often involves uncertainty and time-sensitive judgments.
- Acknowledge the Limitations of Retrospective Analysis: Recognize and communicate that hindsight bias can alter perceptions of past events, making outcomes seem more predictable than they were in reality.
- Document Rationale for Decisions: Thoroughly document the reasoning behind clinical decisions, including the context and uncertainties present at the time, to provide a clear picture during legal reviews.
- Maintain an Objective Perspective on Past Cases: Avoid personal biases when reviewing past cases. Reflect on decisions based on the information available at the time, not on outcomes that became apparent later.
- Promote a Culture of Learning, Not Blame: Foster an environment where medical errors are used for learning and improvement, rather than for assigning blame, to help mitigate the impact of hindsight bias in peer reviews and legal evaluations.
- See “Letter to My Future Self” for a method to thwart hindsight bias in your own practice
- Wears, Robert L., and Christopher P. Nemeth. “Replacing hindsight with insight: toward better understanding of diagnostic failures.” Annals of Emergency Medicine 49.2 (2007): 206-209.PMID: 17083994 Full Text
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- Strasser, Florian, et al. “Impact of physician sitting versus standing during inpatient oncology consultations: patients’ preference and perception of compassion and duration. A randomized controlled trial.” Journal of pain and symptom management 29.5 (2005): 489-497. Full text
- Murphy, Alexandra. “To sit or not to sit: a question of cultural performance.” Annals of Emergency Medicine 51.2 (2008): 194-196.
- Standing up for effective communication: why we should sit. Link
- Ambady, Nalini, et al. “Surgeons’ tone of voice: a clue to malpractice history.” Surgery 132.1 (2002): 5-9. Full text