A Case for Physician Malpractice Education Sooner than Later - Medical Risk Management Horror Stories and How to Avoid ThemReflections from a 30-year practicing physician and attorney.
You've heard of "better safe than sorry." You've heard of wearing PPE during a pandemic. You've learned about avoiding medical errors. And yet, most physicians (nurses and PA too) are taught little to nothing about medical malpractice lawsuits, the litigation process, and all the stresses - or horrors - that can come out of them. In this article, we'll hear reflections from Dr. Victor Waters, MD, JD, FCLM, a 30-year practicing physician and attorney and President and CEO of Law4Docs.com, involving real-life horrors and pragmatic solutions regarding the reality of physician malpractice lawsuits.
Note: Dr. Waters is the author of Risk Management for Practitioners, a Med-Challenger CME course in medical risk management, the physician malpractice process, and courtroom insights for medical practitioners.
A Case for Physician Malpractice Law Education and Expertise
By Victor Waters, MD, JD, FCLM, CMO
I've lost 3 colleagues to suicide. One during medical school, in his final school year. The second, a young promising well-trained ED physician-leader in his forties. The third, a trauma surgeon in this fifties. The last two men, their completed suicides were triggered by liability issues. As a Chief Medical Officer in various locations and sectors, I have personally witnessed the travails that liability has proscribed amongst so many physicians and colleagues.
I remember Dr. M.
Dr. M. was a quiet, modest Pilipino physician that practiced internal medicine for many years. The State had conducted an investigation on Dr. M alleging that he failed to timely diagnose a kidney cancer. The board suspended his license. Dr. M appealed and lost. But this time with heavier penalties and a longer suspension time. (It almost seemed retaliatory).
Dr. M’s legal experience shattered his morale, self-confidence and impacted him financially. (Remember State actions may not be covered or indemnified by the insurance carrier). It cost him over $100,000 to defend himself against the State. To no avail. Fortunately, he was able to continue to practice but with little or no opportunity to advance his career or move to another State or practice. He became an empty “shell” of a physician.
I was appointed my administrative position near the time his suspension was about terminate. I quickly assessed Dr. M’s need and supported for him to get back on the “on-call” schedule (which was taken away as part of the actions by the State). Other docs mocked at the thought of this “loser” to be on call and expressed doubt in his clinical abilities to be able to perform such duties.
Despite the pre-judgments that amassed against Dr. M, I granted him permission. Over several months, Dr. M didn’t disappoint. He became highly regarded and respected as a clinician demonstrated by his clinical aptitude in covering all sorts of complex medical maladies.
Then one day Dr. M called me stating, “I can’t concentrate. I need to go home”.
Dr. M was diagnosed with terminal brain cancer. I made an unannounced visit to Dr. M during his last days at the medical center. He told me that as a “Pilipino man I have great pride in my work as a physician. Thank you for believing in me as a physician, and restoring my privileges to take call”. A few days later he died. His sons and daughters all ivy league trained physicians, and hundreds of admires and family attended his funeral.
You might ask, why share this story? It has nothing to do with malpractice. It doesn’t matter whether it’s a malpractice claim or State Board action – the painful consequences of either are significant.
Years ago, going through a malpractice claim or State Board action, the process was just accepted as a “right of passage" - a process you have to just deal with, much like going to a dentist for a procedure. It was viewed as a necessary evil all in the course of our medical careers.
But today, the impact of liability can penetrate our “souls”, infiltrating us like a virus spreading through our system. The “virus” attacks our brain causing us to lose our self-confidence in how we practice. Then we fear that it will it happen again, and how can I protect myself – triggering Defensive Medicine practices. It can impact our sense of “well-being” – causing depression, anxiety, sleep deprivation, or suffer reputational damage, all which may lead to “burnout”.
Lastly, our “hearts” may be infected – the “good will” to practice, the drive or mission that motivated us to go into medicine. Our infected hearts become “cold”. We lose our ability to empathize, listen, or truly care for patients – as each and every one of them become suspect to filing a claim or report to the State Board warranted or not.
As a result of our detachment and disengagement with patients we fail, with insufficient defenses, to protect ourselves from another malpractice claim. We spiral in a downward trajectory, out of control to a finite point – restriction or loss of our medical licenses, premature retirement (if you can safely afford it), alternative careers (which may not be a bad thing), burnout, or suicide.
Physician Malpractice Lawsuits Are Not Uncommon - Neither Are The Mistakes
Such a bleak prospect for us providers, but not uncommon. I have personally witnessed hundreds of good, committed, dedicated, well-trained, respected, hard-working physicians of a range of ages, backgrounds and specializes that have been cut off “under their legs” their reputations dismantled, their careers upended. One common dominator with these physicians is stubbornness.
The unwillingness to see help, assistance, mentorship through the processes, whether it’s a malpractice claim, State Board complaint or other legally related issue.
For example, a physician gets a State Board action and is invited for an interview by State Board representative. He consciously decides to “go at it alone”. Meaning he deliberates whether to hire an attorney at this “pre-investigative phase” or just go to the meeting “unrepresented”. He chooses the former because he says to himself, “I don’t need no damn attorney. I did nothing wrong. I’ll just go in and tell them the truth. It’s just a waste of money to hire an attorney. And I don’t have the time to find one.”
So he talks himself as rationally as possible that he’ll be just fine to represent himself in this matter.
But little does he know, that State Board representatives spend significant quantities of time in preparation for these meetings with very specific and purposeful questions. And without an attorney present, the physician has no way of telling which ones are appropriate and safe to answer. The physician is already doomed at the door of the Board without representation. His responses to the Board’s questions lay fertile ground for a full Board formal investigation which is now reportable to all employers and other States.
Ignorance and stubbornness is the cause of this mistake by many well-intentioned physicians.
An old Chinese Proverb states:
“He who ask a question remains a fool for five minutes.
He who does not ask remains a fool FOREVER.”
It's simple. Get educated and don't go it alone.
Physician Malpractice Education Is Better Sooner Than Later
Malpractice courses are taught extensively and exhaustively in law schools through the country, but incredibly, it’s a rare lecture, here or there that is taught in medical school.
Keep in mind, that for every doctor who graduates from medical school* (*According to AMA 20,630 graduated in 2015), almost twice as many students graduated from law school with the capacity to sue you!.* (*33,791 students graduated 2017 according to ABA).
This gap in knowledge puts healthcare professionals at a great disadvantage, especially as the practice environment becomes more complex and challenging – new tools and processes are continually introduced, doctors are expected to accomplish more in less time, and patient expectations remain high.
Unfortunately, many physicians are unaware of the severity and demands of a malpractice case or Board action until faced with it.
PPE for Malpractice Lawsuits
If you are interested in learning more about risk management and navigating malpractice lawsuits, please see the course information below.
Risk Management CME Course for PractitionersLaw-4-Docs Risk Management Video Course
Law course for physicians and medical practitioners helps you understand the malpractice process and learn how to protect yourself against lawsuits.
- 12 engaging video lessons by Victor Waters, MD, JD, FCLM, a practicing, board certified physician in internal medicine with over 25 years of experience, a licensed attorney, and founder of Law-4-Docs.com.
- Topics covered:
- Defensive Medicine
- Offensive Medicine
- The Malpractice Claims Process
- You’re Sued, Now What?
- Deposition Tips
- To Settle or Not to Settle?
- Trial tips for Doctors
- 10 Secrets Lawyers Don’t Want You To Know
- Lawsuit Consequences
- 5 Tips: EMR (Electronic Medical Records)
- Informed Consent
- Pain Medication and Liability
- 25 questions for review and retention
- Adaptive self-assessment with guided remediation
- Earn up to 3.0 AMA PRA Category 1 CME credits™
- Earn up to 3.0 ANCC CNE credit / contact hour
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