Made an Error in Clinical Judgement and You Got Sued! Now What?

4 year’s of college with a 4.0 GPA (Well, maybe 3.5 yrs if  you dismiss the blackouts) – Check
MCAT’s- Check
4 years Medical School- Check
USMLE’s – Check

And now finally getting into this wondrous part of our career called Residency.  Working side by side with fellow physicians while helping, learning, growing, saving lives, and of course making some mistakes.  This is all part of what residency is about.  Let’s concentrate on the latter for the point of this article.

In my home country, in 2012 there was a nationally televised interview with the head of our medical council and he was asked how many physicians have had their license revoked since the last 5 yrs and the staggering response was ZERO. But, we are all aware, especially with how the system works in the United States, if a doctor makes a mistake the odds on getting sued are high!  As an International Medical Graduate (IMG), it took me a while to accept this concept, but I still never truly understood how exactly the system worked.  Why would a physician be sued?  What exactly happened?  How did the trial go?  What did they learn?  How did it affect his relations with the hospital and colleagues ?  And so on…

A very interesting feature from Medscape called ‘Malpractice Report’ surveyed closed to 1400 physicians, of which 40% were involved in a malpractice suit. Here are just some of the key points that I took away from that report.

  • Of the 40% involved: Only 9% were sued as an individual whereas the remaining 31% were just one of the many parties being sued [I guess the probability for success would be high if you disperse the blame]
  • Internal Medicine (15%), Family Medicine (13%), OBGYN (9%) and Psych (8%) were the most common specialties.
  • In terms of the nature of the suit, the reasons most commonly cited were: Failure to diagnose and Opportunistic.
  • Of all the physicians involved in the suit, 41% described the experience as “Upsetting but able to function” whereas 23% described it as “Horrible, one of the worst experiences in life”
  • 74% were shocked at being sued and 25% either had an inkling or were expecting it.
  • About a quarter cases (24%) of physicians sued were dismissed prior to depositions, but nearly half of the causes (45%) went on to depositions and about 21% went all the way to trial.
  • 58% of physicians who’s cases went to trial landed up spending in excess of 20 hrs in court. This is a huge amount of time especially if the lawsuit is one that the physician feels should not have been brought in to begin with.
  • 61% of cases took up to 2 years to conclude ! That’s again a long time to be patient and deal with the anxiety and frustration. 28% lasted 3-5 yrs and 11% lasted more than 5 yrs.
  • If the case did land up going to trial in front of a jury a significantly larger % of cases were decided in favor of the physician as opposed to the plaintiff.
  • Would saying “Sorry” have helped ? 93% said NO. [Maybe add this stat into my Medical ethics text book !]
  • Malpractice premiums are expensive ! But in virtually every single case that required a payoff to the plaintiff, the amount was covered 100% by the insurance.
  • Interesting point made by the lawyer “Under the National Practitioner Data Bank policies, if a settlement is paid out of personal funds (not those of a professional corporation or other business entity) as opposed to being paid by an insurance company, it’s not a reportable event to the data bank. So, on occasion, a physician will prefer to write a check personally so that it doesn’t get reported to the NPDB.” [Hmm… Thoughts anyone ?]
  • How would the partners, colleagues, hospital react to you getting sued ? 98% responded saying there was either no change in behavior or pure support from employers / colleagues ! That’s an amazing show of solidarity in my opinion.
After reading this report, I am now better placed not only to understand some details about a malpractice suit but also increase the respect I have for the healthcare community and the solidarity it shows to fellow physicians.  I would like to end this post by listing some of the advice given by the physicians involved to prevent yourself from ever getting involved in a lawsuit.
  1. FOLLOWUP ! Even when you don’t think you have to.
  2. Practice more of a DEFENSIVE medicine.
  3. DOCUMENT, DOCUMENT, DOCUMENT. More often, more thoroughly and more efficiently.
  4. Sometimes, get RID OF rude, demanding, non-compliant and drug seeking patients.

— Nikhil Samtani

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