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

Mark E. Crane

Disclosures

February 18, 2011

In This Article

Don't Make Any Guarantees

In discussing your experience, don't say anything that can be construed as a guarantee, says Belcuore. "An ophthalmologist doing cataract surgery told the patient, 'What you have is something I can definitely fix.' Of course, there were complications.

"The patient heard the doctor's comment as a warranty and sued. While he didn't prevail, the case might never have been brought if he'd been more circumspect in his language."

Physician advertising must be realistic. Never promise a cure or good outcome. "A good lawyer can convert your ad into a contract and a promise," said Joseph McMenamin. "If you're sued for breach of contract rather than malpractice, your insurance may not cover you, and triple damages are a possibility."

Include the Patient's Family

"I've rarely seen families dissuade unhappy patients from suing, but I've seen plenty of families instigating litigation that might not have occurred if the physician spent more time explaining things and answering questions," says McMenamin.

"If the family has questions and the doctor blows them off, a lawsuit is likely if there's a poor result," said Suzanne Fidler. "Doctors who show humanity and caring to families usually don't get sued."

Especially with elderly patients, it's wise to include family members in discussions -- but only if the patient agrees. "If there are several family members, ask them to designate one as a representative. Bring him into the decision-making process," said Alfred Belcuore.

Doctors Sometimes Have a Bad Day

Physicians are human, and sometimes their moods may get the better of them. They may snap at a patient or display impatience. Although it is understandable, the relationship of trust with the patient is at stake.

"People often want to bring suits when a doctor is rude or insensitive even though the liability is questionable," said Armand Leone. "Physicians get frustrated. One surgeon got angry because a wound infection was taking a long time to heal. He took it as a personal affront to his competency. He threw gauze pads at the patient and stormed out of the exam room."

Apologizing is the smart thing to do if you think that you're not meeting that patient's expectations, said Fidler. "You can say, 'I'm sorry I was short with you. I was involved in an emergency earlier and didn't mean to cut you off. Can we sit down so I can answer your questions?'"

Be careful, though, about apologies. Some states have "I'm sorry" laws that bar apologies from being entered into evidence. "It's one thing to apologize for losing your temper, but don't apologize for a bad outcome without first consulting your insurer or an attorney," said Joseph McMenamin.

James Griffith is skeptical that patients sue because a physician had a bad day: "The problem is that some doctors get defensive when the patient or his family is asking questions and he blows them off. If they can't get answers from the doctor, they become suspicious and seek out a lawyer."

Despite the pervasive threat of litigation, two thirds of claims are dropped or dismissed, and physicians prevail 90% of the time in cases that go to trial, the AMA study found. Although getting sued may appear inevitable, the best way to avoid nasty legal surprises is through clearer communication with patients and colleagues, extra attention to follow-up care, and a bedside manner that encourages patients and their families to ask questions.

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