The Surprise Malpractice Suit: 'Why Did You Sue Me?'

Mark E. Crane

Disclosures

February 18, 2011

In This Article

Introduction

More than 42% of physicians have been sued for medical malpractice over their careers, and more than 20% were sued at least twice, according to an American Medical Association (AMA) survey.

Many were flabbergasted when they received a summons alleging that their negligence had injured or killed a patient. Some assumed that even though an injury had occurred, the patient wouldn't sue them. Others lost the patient in follow-up and had no idea that anything was wrong until they were sued.

In some cases, these blindsided physicians never even saw the patient but may have been consulted in a brief phone call. In other cases, physicians who were surprised by a lawsuit should have seen it coming. They missed the warning signs that a patient was unhappy. Some were oblivious to how patients were lost in follow-up or how their own behavior may provoke the lawsuits, say physicians and malpractice attorneys who we interviewed.

Our experts offer insights on the reasons patients and their families decide to sue their doctors, and how physicians can avoid unhappy legal surprises.

"Sue Everyone. We'll Sort It Out Later."

That's the philosophy behind "shotgun" lawsuits, in which plaintiffs may initially sue every doctor and nurse whose name appears in the medical records. Surprise is an understatement because some defendants had an extremely tangential role in the patient's care.

"I represented a urologist who was blindsided by a lawsuit," says Joseph McMenamin, an internist-attorney in Richmond, Virginia: "A young man presented at a hospital emergency department with severe scrotal pain. He had previously lost a testicle. The ER doctor had to decide whether the condition was epididymitis that can be treated medically or testicular torsion that would require surgery.

"There was no urologist on staff. He called a colleague who advised him on a differential diagnosis," McMenamin said. "It was a 1-minute call. The urologist never saw the patient, who ultimately lost his second testicle and is sterile. The hospital, ER doctor, and the urologist were sued. The case settled, and the urologist did make a small contribution. All he did was answer his phone and try to help a friend."

Typically, defendants in shotgun lawsuits who had nothing to do with a patient's injury are dismissed from the case, but the process could take months if not years.

"Naming multiple defendants often occurs when the plaintiff's attorney doesn't have a good handle on each doctor's responsibilities," says Lee J. Johnson, a healthcare attorney in Mount Kisco, New York. "The statute of limitations may be about to run out, and the lawyer doesn't have time to adequately research the case.

"Sometimes, though, a 'shotgun' suit is filed because the lawyer tries to get free expert testimony or a bargaining chip with the other defendants," she said. "Unfortunately, there's usually no way to win financial recovery from the anguish of being needlessly sued."

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