Oh, Those Evil Law Suits!

flying cadeuciiMy wife of 47 years likes to tell of her travails after having married me.  She claims she had no inkling that I would specialize in despised career choices.  Right after we were married, I served as an infantry airborne officer in Viet Nam, a then despised profession.  Then I became a trial lawyer.  A very despised profession.  And then in 2004, I became the CEO of a health insurer,  the pinnacle of my career in despised professions.  At one point she stopped reading the Providence Journal and listening to local talk radio.  When asked if she were my wife, she’d often reply, “Why do you want to know?”

So I have some perspective on emotional reactions of people in varied contexts.  Here we will discuss the hyper-emotionalism that lawsuits engender, because they indeed cause people to act in ways that are confounding.  Of course, an individual plaintiff in a medical malpractice lawsuit is hyper-emotionally involved.  But more to the point of this article, so is the defendant physician.

Why is that?  For the plaintiff, that’s easy to understand.  They believe (or were convinced) that the physician harmed them through negligent conduct, and that they should be compensated (and perhaps apologized to).  Their world often starts to revolve around the lawsuit as if nothing else mattered.  It consumes them, and the outcome is rarely satisfying.

The physician reacts almost equally emotionally when sued.  While that is counterproductive, they typically can’t help themselves because it is a direct and personal attack going to the heart of who and what they are professionally and as human beings.  Heavy stuff.

Unlike games, with lawsuits it’s about YOU, and they can inflict lasting scars and cause irrational behavior.  It needn’t be that way.

So let me discuss this subject in hopes that if you or your organization are sued, you may temper your reaction in a way that allows you to continue to make rational decisions and live your life normally.  And get through the experience with your sanity and perhaps your wallet intact.  [I realize there is the whole thing about malpractice insurance, but let us leave that aside for now.]

To a good trial lawyer, there is nothing like a hotly contested lawsuit.  Lawyers know that the participants (sometimes antithetically called “parties”) fear and hate them, and yet the smell of blood in the water is so intoxicating.  If you are the lawyer doing the cross examining, watching an adverse witness on the stand slowly self destruct is nearly heaven.  You can make a witness who plays fast and loose with the facts literally flinch each time you reach for his deposition transcript to contradict his testimony.

Lawyers are successful when they throw you off your game.  People who are scared, angry, or just off balance make mistakes, and that is what opposing counsel wants.  He or she may seem nice, but never let that fool you.  You will not convince them of the justness of your side of the case, and do not ever let your guard down–they are not your friend.  I had a CEO client who, during depositions, always placed a pencil between him and the opposing lawyer to remind him of just who the enemy was and where he was.

Just like being an Eagle Scout, one never says he “was” a lawyer, so I guess  I am a lawyer.  I tried cases in court–real trials with real judges and juries, for 25 years.  And then for twelve years, I stopped practicing law and became a client as the COO and CEO of a health insurer.  During that time, my feelings about lawyers changed a little.  Upon reflection, that is understandable, and I gained a real appreciation for why CEOs sometimes lose their patience with lawyers.  Because often with lawyers it’s all about the process, which it most definitely is not with CEOs.

I want to discuss the fear of lawsuits, but first let’s talk about lawyers.  Overwhelmingly, lawyers are trustworthy professionals.  I believe in the profession.  There are, of course, bad apples just as there are in the medical profession.  But lawyers have always, since Shakespearian times, had a bad rep and that will never change.  The myriad reasons are too numerous for this article, so we’ll accept it for what it is.

Oddly enough, lawyers are typically risk-averse.  Physicians can understand this since it looms large in their profession as well.  They are traditionalists who see things through the lens of “what is the worst thing that could happen?”

For example, when CEOs look at a draft contract, they focus on the deal terms.  When lawyers look at a draft contract, they focus on the termination clauses.  Why?  If the deal goes south, they want to know how their client can get out of it, or how they can keep the other party in it if it is to their advantage.  And they assume the deal will go south.  Otherwise, there will be no call to action.

Moreover, lawyers take notes during meetings to later review and ponder.  They live in the retrospective.  They are observers and recorders, at least until trial.  On the other hand, CEOs do not take notes during meetings.  They live in that moment, and they do not leave meetings with assignments.  Their task ends with the end of the meeting.  Moreover, CEOs try to observe people during meetings—facial expressions, body language.  They want to get a sense of who is feeling what without saying so.  This reflects different perspectives of CEOs from counsel, which in turn may account for the sometimes lack of clear connection between counsel and the CEO.  They just think and approach things differently.

So let’s talk about lawsuits in the business context, because healthcare is a business.  Your business (and despite suggestions to the contrary, being a physician is the conduct of a business) may be sued.  It probably will be at some point.  You may be sued by an individual or by another business, or by the government.  If you are a physician, it is likely that you will be sued for malpractice at least once in your career.  Try to keep in mind that it is a business lawsuit.  The suit is a claim of negligent provision of professional services.

It can help physicians to think of suits against them in that context–it’s less personal.  And you need that separation so that the claim, whether with or without merit, does not cause undue angst and distraction in your professional and personal lives.  That is VERY important.  You cannot put everything on hold and obsess over the suit for the next three years.

Beyond malpractice litigation, B2B lawsuits are nothing more than business tools.  They are tools of your trade as a business person and should be considered as such.  If you are in business, you should be familiar with them and their use.  Do not let your ego or emotions get in the way.  The are prosecuted or defended based on good business reasons, and remember, over 97% of lawsuits are settled, sooner or later.

You might sue or be sued to send a “message.”  Not just to the defendant, but to the community of observers, that certain activity is unacceptable and will not be tolerated.  As CEO, I once was asked in the context of a suit against a company that provided medical services to our subscribers whether the amount of the recovery was of most importance.  I said, no…my goal is to send a message to the provider community that fraudulent billing will not be tolerated.  So if that means taking the matter all the way regardless of the eventual recovery, so be it.

I believe it helped that the community knew I was a trial lawyer and was not intimidated by lawsuits or the process.  Whether or not that was the reason, we weren’t sued often while I was CEO.  I recall at a meeting being told by an entity’s lawyer that it was considering bringing a class action against my company regarding claims processing issues.  Having investigated the matter and being convinced we’d done nothing wrong, my response was a slow smile and saying, “If you do, you’d better be prepared to go the distance, because I won’t settle.  Ever.”  We weren’t sued.  Was it my lack of emotion?  Perhaps.  In any event, I lost no sleep over the threat.

When an individual sues your business, that gives rise to risks and opportunities.  The “community” watches that as well, and the community often consists of other plaintiffs’ lawyers.  How do you react?  What is the settlement?  Are you an easy mark?  Is it kept confidential?  When sued by an individual, IF you discover that you are in the wrong, try to settle quickly but don’t be a holdup victim.  Use mediation if possible.  It’s a quick and effective way to resolve claims early and fairly.

When a governmental entity, whether or not a regulator, sues you, that is the time to use a lawyer who has experience with that entity and the subject matter.  That is not the time for amateurs.  Get out in front of the matter, get to the bottom of it quickly, and again if you’re wrong, deal with it and resolve the matter ASAP.  Your relationship with your regulator or other governmental entity is important, as is your credibility.

However, if you truly believe you are in the right, that actually can be much more difficult, because with governmental entities, you can lose by winning at times.  To go to the mat with a governmental entity requires top flight legal counsel and strong nerves.  Governmental reserves and resources seem, and often are, boundless.   But at times, you have to take a stand.  Good luck on choosing the right time.

Civil (non criminal) lawsuits, after commencement, proceed with what we call “discovery.”  This is where the lawyers make their money because very few cases actually proceed to trial.  Usually, the first thing that happens in discovery is that documents are exchanged, and there are always fights over that.  But then come the depositions.  Depositions are when witnesses are questioned in a lawyer’s office, under oath, about the facts of the case.  If you are deposed, your lawyer also attends and represents you, but he or she will not do a whole lot at your deposition other than make sure it is conducted fairly.

There is nothing more important in the whole pretrial process than being properly prepared for your deposition (or that of any of your side’s witnesses).  And I mean prepared.  For a decent sized case, your lawyer should spend at least 6 hours preparing you so that there are no surprises for you at the deposition.  You must know the rules, you must know what you should do, and you must know what you should not do.  This is critically important, and I don’t care how verbally nimble you think you are.  The very worst deposition witnesses are super confident sales people and, yes, lawyers.  And physicians, who have this compelling need to know the answer to every question asked by the opposing attorney, whether they are sure they know it or not.  They don’t want to look dumb.  That usually is disastrous, because a wrong guess under oath is the same as a lie under oath.

Bottom line with lawsuits.  Don’t flinch.  As with karate (which teaches good life and business lessons), when the other side takes a swing at you, keep your eyes open, your wits about you, and step in rather than back.  As with snakes, there are harmless lawsuits and dangerous ones.  Knowing which is which and handling them accordingly makes all the difference.

If you are reading this, it is likely you are involved with healthcare.  Healthcare disputes are different from other disputes in a number of ways.  They often involve parties which must continue to do business with one another after the dispute is resolved.  They often involve executives who have known each other for years.  And they often involve confidential and competitively sensitive information.  And often, once public, they can be above the fold news.  You don’t want that to happen, believe me.  Again, resolution through mediation makes perfect sense.

We have all heard about lawsuits that have ended with absurd results (e.g., overheated McDonald’s coffee).   While there are some urban legends, there have been some wacky results, just as there are in other pursuits.  Yes, the “system” is imperfect, and bad results can obtain, just as some surgeries can end in tragedy despite the lack of any negligence on the part of the surgeon.

But in cases where there are seemingly absurd results, strikingly often there is, buried within the facts of the case, a reason for that result.  It is understandably easy to criticise the judicial system given some of the results when you are unfamiliar with what we lawyers call the “travel of the case.”  But with almost every strange result, there is a smoking gun reason.

Very often it is not about the facts themselves, but rather about a document that was destroyed or altered, or a lie under oath.  That was how the first cigarette cancer cases were won.  Think of how this has hurt, for example, governmental officials from Nixon, to Clinton (Bill), to Clinton (Hillary).  Good lawyers alway tell clients that the facts will be what they will be, but if they illegally destroy documents or lie under oath, they cannot be saved.  They are dead meat.  Plus it’s just plain wrong (and incidentally against the law) to lie under oath or destroy evidence.  And so many, many bad results were about the destroyed document and lie under oath, rather than the facts.

So what your parents told you about telling the truth is, well, true.

And the truth is that with good lawyers on both sides, matters generally are resolved properly.  But don’t abdicate your executive responsibility to the lawyers.  They are advisors.  Not dictators.  They advise you and YOU make the decisions.  Unless you want to hide behind them, which is generally a terrible way to conduct business.


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10 replies »

  1. “I don’t think any of this is applicable to malpractice lawsuits though”

    I agree Margalit. Lawsuits involving injured plaintiffs and “I did nothing wrong” defendants is all “personal” emotion.

    I find opinions about lawyers the same as politicians – it’s always the other guy’s lawyer/politician who’s the crook. Most people want their lawyer to be the take no prisoner type.

  2. Funny, that’s what they say when the hit man is supposed to cap the guy in the mob who transgressed. ” Nuthin’ personal, just business”.

  3. I think you give mostly good advice here. I have run our group, about 100 providers now, for about 10 years. During that time I have become, somewhat surprisingly, pretty good friends with our corporate lawyer. When I first started I worried way too much about lawsuits. He has, over the years, gotten me to take more of a business like approach. Be prepared, know what you are doing, document stuff.


  4. “It’s business?”

    That is a glibism that really has no meaning, worth, or relevance these days, and nowhere is that best exemplified than with our health care system/”business.” Specifically, the for-profit health insurance industry which accounts for one third of Mr. Purcell’s resume and is the base upon which our health care system is built.

    Worth noting here: We Americans have the most expensive and least effective health care system in the world, where boatloads of references in that regard are available for the asking/surfing.

    Most businessmen with whom I have spoken, no small number given that I actively advocate for defending ourselves against our health care system, agree that private insurance brings nothing to the business table. Brings nothing to health care except cost.

    Also, regarding your “BTW:”

    I do not see health care law as anything much beyond a cash extraction scheme where we all lose. Even those that win ultimately lose since lawyers’ profits trump all. (Glad to read the words “health care courts” in one of these commenter’ comments since health care courts and single payer are both very real answers, and the only answers, to our very real health care problems… which go well beyond health care. See health care percent of GNP.

    The upside to the down side of all this?

    We have a good track record in this country of hiring and paying well the profiteers-in-the-know to fix the problem that they and theirs have enjoyed so well for so long.

    Here’s hoping that that is the hidden agenda of Mr. Purcell’s THCB posting.

    And about that, I say: PAY HIM! (via incentive, of course)

    Last point please: Anyone reading this post ought to at least come to know who Wendell Potter is and what his book, “Deadly Spin” is about. And then perhaps read it, too.

    Mr. Purcell and Mr. Potter are night and day.

  5. I actually found the article to be spot on (and very interesting)…. from the perspective of a big business CEO, whether plaintiff or defendant. It’s all about money (and maybe power too) in these situations.
    It’s not personal. It’s business.
    I don’t think any of this is applicable to malpractice lawsuits though, particularly when death is involved on either side (except perhaps the knowingly frivolous cases induced largely by two bit bad apple lawyers).

    BTW, lawyers have a bad reputation because by definition 50% of the lawyers one encounters are out to get you. There is no other profession in this predicament, except perhaps police…. and I’m not getting into that here 🙂

  6. Excellent Niran. Plowing through the overly lengthy blog was like plowing through a mandated EHR. A lot of material that misses the point and is extraneous. I get the feeling that the writer is trying to project his feelings onto others believing his emotional state is the only one that has validity.

    It’s “intoxicating” to tear another apart even when the individual doing the tearing knows that the argument used doesn’t represent the complete truth. One of our most excellent and caring surgeons made a horrific stupid error (brain freeze?) and was never the same afterward. He died prematurely.

    Jim, apparently we are very different. We try to put people back together and you are intoxicated in tearing them apart. I like attorneys and even benefit from their presence. Attornies maintain a high bar that physicians must adhere to, but you should recognize that the way we manage our specific disciplines, by necessity, are miles apart.

  7. I do apologize if I sounded cavalier. The point of the article was to first get people’s attention, and then make them understand that lawsuits (often misguided) must not be permitted to ruin doctors’ lives or even significantly distract them from God’s work. That you didn’t see that troubles me.

    And John’s point. BOTH doctors and lawyers operate under tremendous pressure doing things with skills most don’t understand. There is lots of emotion for both. Surgeons look at surgery rather differently than lawyers do…a lot less emotion.

    Rather than be offended, the idea here is to exchange ideas in a positive vein. If I failed in that regard, I am (I mean this) sorry.

  8. Even though I’m not a doctor, I can easily project myself into his shoes in this context and completely empathize with how he must feel. The uncertainty, stress and risk and the fact that it often takes several years to resolve a case one way or another can take a huge emotional toll. Then there are the judicial hellholes around the country where both judges and juries heavily favor plaintiffs often regardless of the facts of the case and see part of their role as redistributing wealth from wealthy insurers and (perceived) wealthy defendants to low income people who claim, rightly or wrongly, to have been harmed.

    It’s no wonder that defensive medicine is a much bigger deal in driving healthcare costs in the U.S. than in other much less litigious first world countries. At the very least, I think we need to take these cases out of the hands of juries who can often be swayed by emotion as expressed by a glib lawyer (think John Edwards) in favor of specialized health courts where judges with specialized expertise can hire neutral experts to sort through often conflicting scientific claims.

    From a patient’s perspective though, one thing that troubles me is the protect your own at all costs culture that pervades not just medicine but law enforcement and other professions as well. I’m told that a relatively small number of doctors account for a disproportionate share of actual malpractice but it’s not so easy to weed them out of the profession. A doctor who served on a disciplinary panel once wrote that their thought process goes something like this: (1) there but for the grace of God go I, (2) he probably has a mortgage and a family to support, and (3) so let’s not take away his livelihood.

    When Warren Buffett temporarily became CEO of Salomon Brothers after the firm was embroiled in a treasury bond bidding scandal, he told his senior people that if you lose money for the firm, I’ll be very understanding. If you lose reputation, I’ll be ruthless. For both doctors and law enforcement personnel whose actions lose reputation for the medical and law enforcement professions respectively, accountability probably needs to be ruthless to ensure the confidence of the public.

  9. This article is a bit too cavalier about the experience of a physician being sued. Lawyers have the luxury of looking at life through the filtered lens of the courtroom, where everything is dignified and elegant. Nothing we do on the front line as physicians is dignified or elegant. You work in retrospective (must be nice), we work in prospective, doing the best we can.

    Sorry Jim, I realize “the smell of blood in the water is intoxicating”, but that is because you have never actually had it splash on your face, run down your legs, and onto the floor as you listen to parents plead with God to save their dying son. We do this, while crying tears of our own.

    You discuss watching another human being self destruct as heaven. I cannot imagine anything more disturbing. You take on cases to make a living; those cases destroy our life and livelihood passing judgement on a decision we made in a single moment.

    Don’t flinch? About being sued? Are you kidding me? Of course we are going to obsess and put things on hold until the case is over. This is about our care and it IS personal. I am not an organization, I am a human. A plaintiff can take our home, every asset not tied down, and then some — because we made a mistake. What happens when YOU make a mistake? No one dies. You do not necessarily lose your reputation, your children’s college fund, or your license to practice law.

    You could not understand our plight as a physician named in a lawsuit. Medicine is a business to you, the government, and every other non-physician who profits off of our hard work; it is NOT just a business to us physicians. We are saving lives, making a pittance ($20 for resuscitation of a baby not breathing.) Lawyers are spinning the truth — for an astounding profit. Lawsuits always inflict lasting scars and cause irrational behaviors because physicians care about patients and people in general.

    The only way to compare is if lawyers were paid $450 for 6 hours of work per case by the government, no matter how long it took to prep, they were required to complete two cases per day in 12 hours total, a non-lawyer evaluated their quality of work, and then lawyers had to pay 1 million dollars for EVERY case they lost?

    Welcome to medicine, though not exactly, because no one dies still if you make a mistake, so there is not enough skin in the game for you to lose sleep, but at least you could try to see it from our point of view.

  10. This reminds me of a story a doctor friend once told me.

    The doctor in question was the target of a very large and very aggressive lawsuit filed by the family of a patient who had died on the operating room table. The cause of death was a serious pre-existing condition the patient had refused to disclose, because doing so would have made the elective procedure too risky.

    Under the circumstances, no reasonable person would blame the physician involved. Yet that was exactly what the opposing attorney was arguing.

    For my friend, the outcome of the case was a matter of life and death.

    If the case went to trial, my doctor friend faced a crippling multi-million dollar verdict. Worse, if the case went to trial and the jury found for the plaintiff, the decision would make my friend virtually unemployable.

    It is safe to say that the threat of the lawsuit ruined my friend’s life for a period of several years. Every day situations at work became psychological minefields. My friend’s personal life was a shambles. My friend lost weight. Then gained it back again. Then developed trouble sleeping. My friend spent countless hours documenting every single important decision that they made in their electronic medical record to rule out the possibility of future lawsuits.

    Needless to say, by the time the case drew near, my doctor friend was a total wreck.

    During preparations for the trial, my friend became emotional as the legal team discussed the expected testimony of the other side’s expert witness. A junior attorney across the table rolled their eyes. “Just calm down. You’re letting your emotions get the better of you.”

    When we met for lunch a few days later at a cafe near the courthouse, my friend told me the story in disbelief. “I couldn’t believe it. They rolled their eyes at me. For them it’s just another day at the office. They don’t get how important this is to me. I never got it before. Now I get.”

    A few days later, a strange thing happened.

    A patient walked into my friends office. The patient happened to be a lawyer. An annual checkup had picked up a suspicious lump. A biopsy had been done. It transpired that the lawyer had a cancer of a fairly nasty yet treatable sort. With proper attention the cancer was completely curable. There was – however – a very real risk of death.

    My friend broke the news. The lawyer was beside themselves. What could be done? He peppering my friend with questions: When will you know what the results are? What do I need to do? Is there a clinical trial I can get involved in? There were a lot of questions.

    “Just calm down” my friend said.

    The divine irony of the situation was not lost on my friend.

    A few weeks later, my friend’s case settled. Some time later when we spoke again, my friend told me that the experience had a profound impact on them. “I always remember what it felt like. I am a hundred times more compassionate than I would be.”

    I tell myself that story from time to time when I deal with somebody at work — usually an expert of some sort or an officious government official– who doesn’t seem to understand why I care about something that matters a lot with me or becomes impatient with questions they’ve heard a hundred times before.

    No matter how important it is to me, it’s usually just business to the other guy.