Does Saying 'I'm Sorry' Discourage Lawsuits?
Our respondents overwhelmingly (93%) said it would have made no difference in whether or not they were sued. Given that a large proportion of physicians were not expecting to be sued, it makes sense that it would not have occurred to them to apologize.
Comments from physicians who were sued:
• "It was not my fault; my name was in the chart, so the plaintiff's lawyer sued me also. It's ridiculous that this is allowed."
• "I believe I showed too much 'sorry' and concern for the patient's wife, and she took it for guilt."
• "I did apologize to the patient when I found out that she suffered an adverse event. It made no difference, even though she said not to worry and that it was not my fault."
Said Rosenberg, "We'd all like to think that if you do the right thing and are empathetic, that will make someone think twice before suing," said Rosenberg. "But the reality is different. If someone is injured seriously enough, he's more likely to sue even if he isn't sure who is at fault."
Dr. Anderson of The Doctors Company disagrees. "We were one of the first liability insurers to support a program of active disclosure and apology. When it's done properly, an apology can diffuse some of the anger, and anger is the primary fuel driving litigation. Sometimes an apology can be enough to prevent a suit. You can express empathy without admitting fault and compromising your defense."
Nationwide, some 30 states have laws that bar patients from using apologies against a physician in court.
Multiple Defendants in Malpractice Suits
Almost 80% of respondents said other physician-defendants or hospitals were also named in the lawsuit against them. Only 20% said they were the only one named.
"In lawsuits that arise out of hospital treatment, there are usually a large number of physicians involved in the care," said Rosenberg. "Typically, the hospital is named as well, mostly because the plaintiff's attorney wants to have as much insurance coverage available as possible. If you sue only one doctor, any recovery is limited to that doctor's coverage. So lawyers try to maximize the coverage available. Also, the plaintiff's attorney may have different theories of liability against different providers. Some may not pan out."
Malpractice insurers agree. "The shotgun lawsuit is standard operating procedure," said Dr. Anderson. "Many attorneys will name everyone in the building that day, and then winnow the crowd down later."
"It's inexpensive to file a lawsuit," said Dr. Lembitz. "There's no disincentive for the plaintiff's attorney to name multiple defendants. They also hope that multiple defendants will lead to finger-pointing, playing one doctor against another. Divide and conquer. Unfortunately, I don't see anything that will reduce this trend."
Most Cases Don't Go to Trial
Only 21% of cases went to trial. Roughly 26% of doctors said their cases were dismissed before depositions were taken; 45% went to depositions but not to trial, and of those, 5% were settled before a verdict.
"Some plaintiff's attorneys file a lawsuit without doing much research," said Rosenberg. "As the lawsuit progresses, they realize there isn't much of a case and start dismissing defendants. When a case is dismissed in the first few months, it's usually because the lawyer didn't obtain an affidavit of merit from an expert witness."
"Cases are dismissed after depositions because the medical liability becomes clearer, or the defendant doctor has solid documentation and is seen as an effective and credible witness," he said. "Conversely, when the doctor is a poor witness, the carrier may recommend settlement instead of trial."
Although only a small fraction of cases go all the way to trial, verdicts have a deep impact on future settlement negotiations. "In our company, only about 6% of cases go to trial," said Dr. Anderson. "We win 9 of 10 of them. But let's say there's a $50 million verdict in an anesthesia case. That prompts plaintiffs' attorneys to seek similar damages. The settlement negotiations start at a higher level."
Medscape Business of Medicine © 2013
Cite this: Lawsuit: 'The Worst Experience Ever' and 'A Total Surprise' - Medscape - Jul 24, 2013.