The Vault

You Want to Sue Me?

“I’d be lookin’ to sue you.”

I’m sorry, what?? That is what I heard from the mother of one of my patients. I was evaluating a high school athlete who had recurrent stingers (nerve injury that affects an upper limb, usually resolves with time) and a possible episode of transient quadriparesis (affecting all limbs this time). I wasn’t on the sidelines for these injuries, so I had to go on the reports given to me by the athlete and the school’s athletic trainer. However, with that information, I did not want to clear this player to return to football until I could be certain he didn’t have any cervical stenosis or any other abnormality that might put him at risk for permanent damage if he suffered another neck injury.

I told the athlete and his mother that I needed to get an MRI of his cervical spine (neck) in order to determine this. The athlete was understandably upset with my decision, but his mother supported my decision to proceed with caution. She explained to me that if her son played again, sustained another injury, and something “bad” happened, she would be more than happy to take legal action against me. Fantastic.

First of all, I can’t say that I would blame her for being angry (at the very least) if I screwed up. But to tell me in my office, to my face, that she’s already thinking about suing me? I found that ridiculous. I must be in the minority, however. If you Google “how to sue a doctor,” an abundance of information follows. There’s an “ehow” on the subject, and even CNN offers an opinion.

I’m sure many can offer some anecdote about how a physician did this or that wrong, and I agree that there are some bad apples out there. That’s not the point of this post. The point is, way too many people are looking, just waiting, for something to happen to they can “get theirs.” It’s disappointing, and quite frankly, very scary. I didn’t go through a lifetime of education and training to doubt everything I do for fear of a law suit. I’m lucky; my specialty is non-surgical and rarely deals with critical health issues. But I’m hardly in the clear. A 2011 study in the New England Journal of Medicine estimated that by the age of 65, “75% of physicians in low-risk specialties had faced a malpractice claim, as compared with 99% of physicians in high-risk specialties.” So I have a 75% chance, give or take, that I’ll be named in at least one claim during my career. Of course, not all of these claims go to court and/or end up with the plaintiff being awarded, but you can see how frequently patients are quick to take action if they think they’ve been wronged.

I’ll continue to do what I’ve been trained to do – practice good, evidence-based medicine, communicate well with my patients, and document the you-know-what out of everything. But at the end of the day, the fear of a malpractice claim, valid or not, will always be in the back of my mind.

Mandy Huggins, MD is a sports medicine physician practicing in south Florida. She is board certified by the ABPMR and holds an added certificate of qualification (CAQ) in Sports Medicine. You can follow her at her personal blog where this post first appeared.

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27 replies »

  1. Dr Huggins gives one example then says way too many looking for a payday. As a doctor she knows anecdotal is not proof.
    Public Citizen has estimated that 15% of doctors commit 85% of the malpractice. If the medical societies, licensing boards and the thin blue line worked to get rid of the bad apple recidivists people would not have to be leery of their doctors.

    This is my med mal story: https://www.youtube.com/watch?v=R12rJd7BlvU&feature=youtu.be (synopsis)
    longer version: http://www.experienceproject.com/stories/Want-To-Tell-You-Abut-My-Medical-Malpractice-Experience/2879872
    The doctor committed perjury, the Pa Superior Court said so: “We have little difficulty in concluding that Dr. Jannetta’s testimony at deposition was different than, or inconsistent with, the testimony at trial.” Levy v Jannetta, CCP Allegheny County, GD 81-7689; appeal -J. A370017/92 Levy v Jannetta et al, No. 00150 Pittsburgh, 1992. settled, 1995
    There was proof of negligence, malpractice, ghost surgery, and lack of informed consent. Doctors refused to testify saying I don’t want to get involved or I wont testify against this doctor and He is my friend so I wont testify against him> If doctors cared more about regaining the respect of patients they need to show they are willing to take the action(s) necessary.

  2. A Patient asked me recently after a detailed discussion of a recommended surgery and alternatives ,risks , and benefits that if she signs the surgical consent, does she give up the right to sue me if she has a complication? I told her find another doctor.

  3. “But to tell me in my office, to my face, that she’s already thinking about suing me? I found that ridiculous.”

    Her comment didn’t change the probability of her suing you, and it didn’t change your treatment plan. You have other patients every day who share her attitude, and simply don’t tell you.

    Unless the anecdote has some part in changing tort law in America — and it would have to change the campaign finance cash flows of the Democratic Party to do that — then you’d spend your time better by just ignoring her comment, and treat each patient as the probable litigant you’d better assume them to be.

  4. Amen to this comment! The antiphysician lobby that, per the comments by various people here repeatedly, troll at sites to just bash and demean doctors in their various pathetic rhetoric that they then try to defend and diminish the intensity when justifiably called on it. And almost all of them aren’t doctors, and I will take the risk to say that the ones who are who defend this attitude that litigation is just evening the process probably don’t practice much clinical care anymore, if at all to begin with.

    I want to meet one of this idiots who make light of being threatened to be sued, or have been sued for a frivolous cause, tell us here it is no big deal and say it with a straight face. Yeah, so is getting stitched up without anesthetic. Bet these individuals don’t jump at that opportunity, eh!?

    Oh, and by the way, right on the mark to discharge patients who crap on the patient-physician alliance with remarks like the patient above made.

    Hey, if it is a business model, what do you tell the customer who is not interested in your product or service to do? Go elsewhere! And don’t let the door hit you on the ass when you leave. God forbid I can get to it before it closes!!! Health care is a business? BAHHH!

  5. What’s too bad is that even with all that effort we still share the same problem: an end-loaded system that supports divisiveness and fear-mongering, and makes for stressful legalizing and criminalizing of health when it’d be better to design a front-loaded system that communicates health in an iterative, modular, and collaborative way. I write more on health communication reform at http://bit.ly/zF4jwc N http://bit.ly/mPrXxv

    Dena Rosko, MA-ComL
    http://about.me/denarosko

  6. As a physican my husband had gone through a similar experience with a patient. We work in a rural college town, in PA a college student from a the Philadelphia area (hugh malpractice claims and award area) came in with a headache. My husbnad felt her symptoms wre sinus related. She said how do you know I don’t have meningitis. Cause if I do, and you miss it I will sue you. My husband said to that patient: First off, there is nothing to suggest meningitis here and I will using all the resorces available to take care of you in an appropriate manner. If you choose to form a defense such as that tactic just remember,. If you sue me and I did nothing wrong, I will sue you back! In our case this patient was healthy and we after ensured her return to a healthy state, we sent her a legally bound discharge letter. We work with a malpractice carrier that is very proactive about cases like this. I feel as physican we need to do what is best for patients, but we can at the same time need to defend ourselves. We are individuals and society has made us out to be the bad guy. In todays world I feel many physicans are easy to plead the fifth instead of defending themselves. The bow down to the patients demands. With that said my office always looks at the patients perspective, but do not allow ourselves to be bullied. I know many physicnas feel they can not discharge patients or repremand them out of fear. There is a legal process in doing this and if you are following the rules there is no reason you have to continue to take care of patients like this.. We are self employed and that is one of the best advantages to being your own boss, I know with being employed in the past this was not as easy.

  7. I agree that we’ve a shared interest in improving if not revamping the health system. We need to change how we organize and communicate health before debating finances, whether that be in how to pay for the system or how not to be sued. I find it concerning the detached ambivalence or outright hostility I hear on both “sides.”

    I advocate designing health documentation chart systems that include the constituent’s text. Doing so will create a legal text in the “patient’s” own words without being translated into medical language or their informed consent or dissent overruled by “medically indicated…”

    We will all benefit by designing a better documentation system. Potential benefits include reducing costs (offering options and alternatives to procedures, or opt-out), errors (shared burden of communicating desired medical outcomes), and less litigation (e.g., the “patient” feels their contribution and choice heard and respected). Possible hindrances include fear of change, anticipated loss of “control” or “expertise,” and lobbying groups wanting health done a certain way. Collaborative models to health will make the system more sustainable and just, plus allowing for a bit less stress and more morale among clinicians.

    Dena Rosko, MA-ComL
    http://about.me/denarosko

  8. I stand corrected. That said, at this point where we as a profession have been relegated to being assembly line workers, maybe it is time to get people’s attention by, striking. Oh yeah, that opportunity has past, hasn’t it?!

    By the way, if you aren’t aware or strongly support her writings, well, whatever.

  9. Determined,
    I have been named in a lawsuit and have had a major complaint filed against me, and yes, both were “frivolous”… to us anyway. For doctors, lawsuit experiences are indeed embarrassing, stressful, heart-breaking sometimes, and cast so much self-doubt on how one could deserve this humiliation and stress. It is a horrible feeling to be impugned when you mean only to do the right thing. For patients, there are many different varieties of people who sue. Some will not be stopped in their pursuit to sue and make some money with the right lawyer. But many just want someone to explain to them why they had a bad outcome, apologize if there was a mistake, and get some fair recompense. And even more don’t want those bad outcomes to happen at all.

    It seems to me that as doctors who signed up for this job to try as best as we can to help sick individuals feel better and to help the public truly be healthier, that advocacy for systems change is in line with our job description. In a free society, in a supposed marketplace of economic and political activity, people will lobby for laws to support their causes. Our cause, as physicians, should be not only for our own personal protection, but for a better health care system–which, I would argue, *is good for our personal careers and for our whole profession.

    My question, Dr Determined, is If you don’t want to advocate for a better, safer system that reduces bad outcomes, and if you don’t want to advocate for a better malpractice tort system, one that is both more equitable to the injured and fairer to health care providers who are just trying to do the right thing, then…. why are you a doctor?

    p.s. I don’t get your comment about Ms.(or Dr.?) Mahar. I don’t know her, but I don’t see why her support for my comment is to be any less respected. And no worries, doc, I have plenty of colleagues who value my position.

  10. Fortunately, I have not yet been named in a lawsuit as a physician, but, until you have been sued and especially if it is a frivolous action, don’t tell us as doctors to just advocate more and stop complaining. Advocating when you have been emasculated is just empty rhetoric.

    By the way, having a shout out for your comment from Ms Mahar is not an ally I’d want if wanting colleagues to value my position.

    Just my opinion.

  11. The only reason she may want to sue you is because you are too hot and she envies that.

    I doubt it has to do with malpractice.

  12. It’s possible the mother was counting on her “football athlete” son to provide for here future financial security from an NFL contract. I agree with Steve to just tell them to find another doc.

    I also think better communication and empathy from docs could avoid most of these “lawsuits”. But medical treatment is expensive and there is no other system to provide compensation to cover paying for additional care from someone’s mistake/oversight/malpractice.

    However I think most of the doc hype over lawsuits is bogus.
    http://www.rawstory.com/rs/2011/08/17/most-u-s-docs-face-malpractice-suits-but-few-pay/

  13. Ram, I could not say it better myself, and I’m a patient. As a health care writer I understand that doctors already work incredibly hard for their patients, but to your point, but there is much work to be done to make the system better for everyone. Well, physicians and patients. Much of what would make the system better for doctors and patients might put the insurance companies out of business.

  14. Sit back and watch how some MD who made the mistake of trying to take care of Whitney Houston will be crucified for writing prescriptions for benzodiazepines and how it is this doctor’s fault alone she died.

    Wow, get ready colleagues, the antiphysician lobby has their poster child and we will be seeing the picture, hearing the name, and reading how doctors are killing people because, hey, we’re supposed to be svengalies (don’t feel like looking up the spelling) and know who is in need and who is manipulating us.

    You know what, I hope the addiction crowd who is doing good recovery work is ready to retort long and loud how it doesn’t matter who the f— you are, if you are an active addict and rejecting recovery and just surrounding yourself with enablers, codependents, and stupid cohorts in crime, you deserve the fate that sustained abuse will provide.

    Let’s hear from the usual suspects who will demonize me for not being the sad sack physician who will just keep bailing people out.

    Dependence, irregardless of it’s driving cause, is THE reason this country is just swirling down into the septic tank of pathos!!!

  15. Although not being a physician, I wonder if any sports-med specialist’s treatment for a football injury should include a recommendation that the patient – and anyone else- should drop the sport and take up pretty much any other sport which is healthier and less dangerous.

  16. Very nice comment.

    If I may add, since I’ve been in those exam rooms a few times with my kids (not threatening to sue though), this is not the whole story now, is it?

    The “athlete” was hellbent to go back and play, and mom knowing that there is very little she herself can do to stop the “athlete”, resorted to the best weapon she could think of to make sure the doctor stops the kid, in no uncertain terms, instead of recommending the best course of action with a bit of hesitation in her voice (imaginary or not).

  17. I deeply sympathize with this experience, the anxiety and annoyance that it evokes. But, the tone of this post only exacerbates the adversarial nature of this problem I hear patients discuss lawsuits often, but I hear doctors discuss it MUCH MORE often. Let’s face it, the problem isn’t patients. It isn’t even really third party payers (insurers, medicare, etc.), as despicable and profit-driven as they are. It is the medical industry’s history of putting up barriers to innovation in patient safety, electronic medical records, evidence-based practice, advocating for *real health system reform (such as payment reform that pays for quality and time spent instead of for volume, medical review boards, early-sorry laws), instead of perennially fighting for caps-on-damages tort reform. We have much more power and ability to advocate for change than we doctors complain about. But we have to advocate for the right type of change; maybe patients will actually trust us more when we advocate for their safety and for the quality of the system. For those who don’t, nothing will placate them, but at least we will reduce the amount of injury that our patients sustain overall.

  18. Wait a minute. What do you mean, what a shame?? The lawyer said, “these doctors saved your life.” Sounds like a more than reasonable lawyer, who could have roasted you! ..

    I am a physician as well and hear patients discuss lawsuits often, but I hear doctors discuss it MUCH MORE often. Let’s face it, the problem isn’t patients. It isn’t even really third party payers (insurers, medicare, etc.), as despicable and profit-driven as they are. It is the medical industry’s history of putting up barriers to innovation in patient safety, electronic medical records, evidence-based practice, advocating for *real health system reform (such as payment reform that pays for quality and time spent instead of for volume, medical review boards, early-sorry laws), instead of perennially fighting for caps-on-damages tort reform. We have much more power and ability to advocate for change than we doctors complain about. But we have to advocate for the right type of change; maybe patients will actually trust us more when we advocate for their safety..

  19. I would urge Dr. Huggins to take the results of her Google search with the same grain of salt that she probably encourages her patients to do. The us-versus-them mentality (“I must be in the minority”) can be insidious and seductive.

    I’d also like to comment on the use of the patient’s words in this article. “I’d be lookin’ to sue you.” Dr. Huggins deliberately used the quote to start her piece and it is indeed evocative. I can imagine a mother with a deep Southern accent, a tight jaw, a jaded look in her eye, and a lot of tension in the room. What is this tension all about? Good question.

    The threat of a lawsuit isn’t just about issues of life and death, although those topics certainly rev the emotions. The threat of a lawsuit is also seen by many patients as a means to alter the enormous power differential they perceive between themselves and their physicians. This has little to do with the actual facts of the case. Thus, the pre-emptive threat of a lawsuit is not just the consequence of a litigious society; it is also a form of class warfare.

    Many patients entertain the fantasy that their physicians are more wealthy, connected, privileged, and DISAFFECTED than they actually are (well, most of the time). It is no secret that physicians who appear and aloof and disinterested in their patients’ suffering are more likely to be sued, whereas those who apologize to their patients in the wake of medical errors are at least more likely to settle out of court and have smaller payouts in the end (especially for major injuries). Thus, there is tremendous monetary and other benefit to sensitivity.

    Providers’ best efforts don’t always undo their patients’ prior experiences and life lessons that influence them to be defensive or hostile. But the exact wrong thing to do in that situation is to stiffen up and become equally defensive. Bottom line, patients don’t want to feel devalued or dismissed, and some will walk through the door expecting to be treated that way based on any number of factors that the physician can’t control. The pre-emptive threat of a lawsuit is an opportunity to pass a patient’s “test” and move forward more productively. Sure, that’s not going to be the case all the time. But imagine if it were true just half the time. What’s the harm in stepping outside yourself?

    Don’t just take my word for it:
    http://archinte.ama-assn.org/cgi/content/abstract/154/12/1365

  20. I get something like this a couple of times a year. Some people seem to think that threatening to sue will cause me to be more careful. I just cancel their case and tell them to go find another doc.

    Steve

  21. Hi, I believe that changing how we communicate and organize health systems will reduce the need for constituents to feel that law suit represents their only feedback option. If we invite legal contribution from the onset, then we share the burden of care with the constituent instead of shouldering it solely on the clinician-as-expert. In Western culture, legal comm involves writing. Learn more at http://bit.ly/zF4jwc

    Kindly,
    Dena Rosko, MA-ComL

  22. This is a great post. Since I have many friends in the field of medical practice, I have become aware of the over-bearing costs of liability insurance most doctors choose to get because they assume an eventual lawsuit. On a side note, be sure to check out this article on the future of doctors and their potential (or lack thereof) earnings.

    http://bit.ly/ykxbHN

  23. Good article. Too many patients (and their mothers, in this case) suffer from the nirvana fallacy–attacking any less-than-ideal outcome because it does not match their unrealistic, perfect vision. The courts need to recognize this.

  24. Great article and a sad reflection of our times. Reminds me of a situation I experienced a few years back, while assisting on a twins C-section, the mother experienced a rare amniotic fluid embolism (1 in 10,000 deliveries) while on the operating room table. Although a large percentage of mothers die with this poorly understood obstetric emergency, we were able to act quickly and stabilize her. I drove over an hour to be with the family at the territory care hospital all night. She lives today to care for her many children. Her insurer, however, refused to pay any of the expenses “until they sought legal council and ruled out legal action”. Thankfully, the lawyer told my patient, “go enjoy your children, these doctors saved your life.” Had she walked into the wrong office, we may be in court today.

    What a shame….

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