Patients Who Won't Sue Their Doctors -- Even When They Could

Mark Crane


November 25, 2013

In This Article

Families Want Candor More Than Money

Patients and families often seek out attorneys when the physician avoids them following a poor outcome. "The patient naturally thinks the doctor is trying to cover something up," said Joseph McMenamin, a defense attorney in Richmond, Virginia. "For many families, their motivation in filing a lawsuit isn't necessarily financial. They want to find out what happened, and what the doctor or hospital will do to avoid making the same mistake in the future."

"I had a case where a premature newborn developed seizures. It was later determined that the baby's IV contained insulin that wasn't intended or indicated," he said. "The baby suffered severe brain damage. The family ran into a brick wall when they tried to find out why this happened. The ICU administrator was so distressed by the mishap that he simply couldn't face the parents. This went on for days. The family lawyer told me that his avoidance of them was the main reason they were so determined to sue."

Even in catastrophic cases, though, patients may decline to sue if the physician is candid about the mistake, expresses sympathy, and spends time with them.

"An elderly patient was diagnosed with lung cancer," said Stephanie Sheps, director of claims at Coverys, a professional liability carrier based in Boston. "When the radiologist checked a prior film, he found that the mass was present then on the prior study also and that he had notified the FP at the time. The FP never followed up on it."

"The case would have been a slam dunk for the patient. He was coming in to see the FP that day. Without any euphemisms or excuses, the FP explained the error and apologized. He spent a lot of time focusing on what it would take to help the patient recover. On the basis of their long-standing relationship, the patient never sued."

James Griffith tells of when the chief of surgery at a major teaching hospital called him from the operating room. "He was trying to show a resident how to remove what he had good reason to think was a harmless polyp. But it wasn't a polyp. It was an aneurysm. The patient died within seconds. 'What should I do?' the surgeon frantically asked me."

"I told him to go to the family immediately and explain what happened exactly as he explained it to me," said Griffith. "The surgeon said, 'But they'll sue me.' I agreed. I told him, 'They're probably going to sue you anyway, but at least they can't say you weren't honest or caring.' The surgeon was candid with the family, apologized, and expressed his deep remorse."

"The family was naturally upset. But 2 weeks later, they asked for a meeting. The family said they knew the surgeon did the best he could and that it was an honest mistake. They were impressed that he was honest with them. The family decided not to sue. The decedent had a will and left a substantial amount of money to the university. The family said they wouldn't contest that. Honesty is always the best policy."


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