The Law: Trial Lawyers Tell All

Why do patients sue?

Because they perceive malpractice, says Manhattan plaintiff’s attorney Jeff Kimmel.

A patient’s perception may be influenced by actual medical facts, but his relationship with you and your staff and how well he thinks you’ve handled a negative medical outcome weighs very heavily in his decision to sue. “Almost everyone says that ‘If the doc had only apologized or been nice to me, or [if] he would’ve come to me,’” the lawsuit could’ve been averted, says Kimmel, a partner in the law firm of Salenger, Sack, Schwartz & Kimmel. “‘But he tried to cover it up, or ignored it, or had been arrogant about it. Now it’s war.’”

Of course, a bad treatment outcome does not usually mean malpractice. People sometimes die during procedures. Complications do occur. Whose fault is it? Sometimes it is the doctor’s; more often, it’s not. That’s why Kimmel and other plaintiff’s lawyers are very selective in the cases they’ll take (and still lose more often than they win, on average). Here’s one of their secrets: They’re not looking merely for cases of physician error; they’re also looking for unsympathetic defendants - for physicians who seem unfeeling. Take steps now to protect yourself. Here’s how, straight from the ones on the other side of the courtroom.

What makes a good case?

For trial lawyers, establishing the facts is the first important step. What exactly happened? When did it happen? Who was involved? Where does it leave the patient? This is very specific evidence, but it must be in place to support the claim, says Kimmel, either “in the records or strikingly omitted from the records.” Kenneth Levine, a 20-year veteran plaintiff’s attorney based in Boston, says, “lawyer’s opinions don’t matter as much as it might seem.”

So, the documentation in a patient’s chart - or lack thereof - is of supreme interest to a trial attorney. So is the damage, which must be life altering and severe. A scar that turned out a half-inch longer than expected? Un-uh. Loss of brain function? Bingo.

Also, such damage must have actually happened. “We often get calls where people say, ‘I could’ve died!’ Well, you didn’t,” says Kimmel. No case.

Most lawyers are not medical experts, but they know how to secure one to review a case and offer an opinion. This opinion must solidly support the damage, backed up by the expert’s immutable credentials in that exact area - a slippery slope for the trial attorney.

Finally, a good trial attorney will consider the plaintiff’s likeability, as in, is he? “Some people just aren’t,” says Levine, and a plaintiff with an off-putting demeanor can quickly poison a case. Levine also looks for certain other deal-breaking signs that divulge a person’s inner gold digger. “If I meet with somebody and in that first meeting the person asks how much the case is worth,” he says, “I generally don’t take that case.”

A picky profession

Believe it or not, reputable trial lawyers who specialize in litigating malpractice cases do not relish taking every case to court. Why? Because “we’re likely to lose,” says Kimmel. He estimates that 80 percent of medical malpractice cases that go to trial rule for the defendant - much worse odds than most other personal injury cases.

The U.S. Department of Justice numbers differ only slightly. According to government data from 2003 (the latest available), medical malpractice is the second-toughest type of tort case for plaintiffs to win at trial, with defendant physicians prevailing in 63.3 percent of verdicts.

The Justice Department’s data reflect trials in federal court; most malpractice claims are heard in state court, and states vary widely in terms of their sympathies toward plaintiffs. Still, the majority of cases don’t even get that far: According to a 2006 Harvard School of Public Health report, 61 percent of medical malpractice suits are settled out of the courtroom. And it takes a sizeable chunk of change for lawyers to prepare for such cases - $50,000 would be a “normal” outlay, says Kimmel. Meanwhile, with many states passing laws capping damages for pain and suffering (often at $250,000), and the amount of any judgment that attorneys can take home, the potential payout for plaintiff’s lawyers is greatly reduced, without any reduction in their risk.

“It’s nowhere near what the public thinks,” says Kimmel. “In New York there’s no huge payout [for attorneys]. Statutorily, it’s less than a third [of the award]. It goes down to 10 percent … on a sliding scale once you collect over $1 million.”

According to a 2001 study of the 75 largest U.S. counties, conducted by the Bureau of Justice Statistics, medical malpractice plaintiffs win only 27 percent of trial cases - compared to 52 percent for all other plaintiff-won tort trials. Even winning a case is no guarantee the plaintiff will see any real cash forthcoming.

Another Justice Department study, using data collected on 43,000 closed cases between 2000 and 2004 from Florida, Illinois, Maine, Massachusetts, Missouri, Nevada, and Texas (all of which are required by state law to submit information on closed medical malpractice claims), found that most plaintiff-won claims closed with no compensation to a claimant at all.

Shields up

The threat exists, of course, but you really do have a reasonable amount of control over whether you’ll ever be sued. Prevention is key. The steps to avoiding lawsuits are tried and true and bear repeating.

• Be nice. All the time. “Patients are very forgiving if they like you. Communicate. Talk to them. Treat them like they’re human beings,” says defense attorney Scott Nichols, a partner in the Houston office of Strasburger & Price. “You’re less likely to get sued, and you’re more likely to have a good result.”

Develop relationships with your patients by truly listening to them and validating their concerns. “Try to consider the perspective of the patient. You have knowledge; they have none,” says Kimmel. In these WebMD-centric times, you do have to contend with patients who have read about [insert-frightening-medical-fact-here] on the Internet thrusting the printout at you to prove it. Is it a valid concern? Maybe, maybe not. Address each instance separately. Help your patients to understand what’s good information and what’s claptrap. Embarrassing them by dismissing out of hand such procured information will do nothing to keep communication flowing between the two of you.

• Connect with referring specialists. Levine suggests that you make a point to maintain a dialogue with anyone who treats your patient. “Read the report and talk to the person who did the test,” he says.

• Become a history buff. Make sure you read your patients’ medical histories completely. “Generally, it’s a little nuance that you missed, and then there’s another little sign,” says Levine. “Take the time, particularly if it’s a new patient transferred to you.”

• Document well. “Good, exact notes are the best defense against medical malpractice cases,” says Levine. “You offered a caesarean section, but the patient refused? Write it down.” Include in your notes what you said, what the patient said, any instructions you gave, questions you asked, anything and everything that seems relevant. But for goodness sake, says Kimmel, “Never alter any record without indicating it is an addendum.” Maybe you really did mean to add that notation about how your patient refused a follow-up mammogram, but it’s too late now. Changing a document is the kiss of death in litigation matters.

• Stay within your area of expertise. More and more physicians are adding ancillary services to their practices to shore up increasingly flabby bottom lines (due to decreasing payer reimbursements). Such widening of your scope of practice can be good, but be careful that you “don’t follow the dollar sign,” warns Stuart Grossman, a partner with Grossman Roth, P.A., in Coral Gables, Fla. “We have a lot of people doing a lot of different types of surgeries - a lot of line-crossing.”

A sorry mess no more

Because you’re human, it’s likely that eventually, you will make a medical mistake. Hopefully, it will be minor and easily rectified. But if not, the very best action you can take to avoid a lawsuit is to disclose your error, apologize, and offer restitution. Only in this way - and by having the above list of preventive measures in place already - can you mitigate the possibility of your patient suing you.

Disclosure is definitely something you should be doing; it’s clearly outlined in the AMA’s Code of Medical Ethics. In a few states - Florida, New Jersey, Nevada, Pennsylvania, and Vermont - it’s the law (with more states climbing onto that wagon soon).

But as for saying you’re sorry, that’s akin to slipping a noose around your own neck, right? Wrong. Today, at least 34 states have some form of an “Apology” law, which essentially makes a physician’s apology to a patient for a negative treatment outcome inadmissible as evidence in a court of law.

This theoretically offers you some legal protection, although “it’s always been good to say sorry,” says Doug Wojcieszak, founder of the Sorry Works! Coalition, which trains physicians and hospitals on how to disclose medical errors, apologize appropriately, and, when necessary, offer upfront compensation.

But why, exactly, would you be saying you’re sorry? To apologize for committing a medical error, and therefore malpractice? Or to offer comfort to a fellow human being who is suffering? The difference is critical. The first is an admission of guilt, while the second is an expression of remorse.

Apologizing might still result in you being sued, although only about one-eighth of patients injured annually actually do sue. Again, your positive relationships with your patients - or lack thereof - will play into your patients’ decision.

Merely expressing sympathy, without accepting blame, reveals your ability to sense another’s suffering. Feeling and communicating true remorse is critical, regardless of guilt, because it shows your patient that you feel terrible that she is in pain. Choosing this path, though, may ring hollow if, in fact, you are to blame. Regardless, remorse is essential to give closure to both you and your patient.

As to the effectiveness of “Apology” laws, Wojcieszak knows defense lawyers who say they’d never invoke an “Apology Law” to protect their clients. Makes sense. After all, the impression given by a contrite physician doesn’t exactly help a plaintiff’s case in terms of the size of the award.

“How do you make a guy look bad who just apologized and is trying to do the right thing?” asks Wojcieszak. Juries will likely react with sympathy for a remorseful, humble human being, as opposed to condemnation for a silent, self-righteous schmuck.

Not sure how to go about developing this “sorry” skill? Get some training. You’ll find one such venue is on the Sorry Works! Coalition Web site. If you’re concerned your apology to a patient may go awry and get ugly, consider securing the services of a mediator or even an arbitrator. The National Arbitration Forum can help you determine a course of action.

Many major hospitals are also starting to institute “I’m Sorry” programs, including Harvard Medical School, Johns Hopkins Medicine, Allina Hospitals & Clinics, Veterans Affairs Medical Center in Lexington, Ky., and University of Michigan Health System in Ann Arbor. Get on board if your own hospital has such a program.

Don’t just say it

The last step is to make restitution. Again, a mediator or arbitrator can help you with this, if need be. However if you choose to do it, “make every effort to make things right,” says Grossman. “Offer to operate for free,” if that makes sense. Again, if you’ve been doing things right all along (and again, see above section), you’ll more likely find a fellow problem-solver in your patient rather than an adversary.

You’ll also find that there’s nothing like restitution to allow you to forgive yourself for making the mistake - also critically important.

Preventing trouble is preferable to resolving it. But there’s no way to remove risk completely, says Segal. “The best way to never be in a car accident is never to drive,” he says. True, a pedestrian can still get plowed by a bus. But hiding out in one’s house to avoid any injury makes for a less-than-fulfilling existence.

So practice medicine in the best way you know how, taking reasonable precautions to protect yourself against a lawsuit. Your patients will sense any paranoia you might be trying to hide, which will only serve to undermine the trusting relationship you have with them. Remember, Segal says, “Most people don’t want to sue; they want to get healed.” And you’re just the doctor to do it.

Shirley Grace is a senior writer for Physicians Practice. She can be reached at sgrace@physicianspractice.com.

This article originally appeared in the April 2008 issue of Physicians Practice.