Physicians React: Life After a Lawsuit

Sandra Levy

Disclosures

June 14, 2017

A Call for Tort Reform

Several respondents were adamant that tort reform is needed to protect physicians. An internist said:

We desperately need tort reform. To paraphrase Atul Gawande, 'I do approximately the same number of surgeries a year as ground balls fielded by a major league third baseman. If that third baseman makes two errors, he wins the gold glove. If I make two errors, then patients end up injured, or worse.' Point being, we all make mistakes, and of course there needs to be a way to compensate those who experience bad outcomes. Unfortunately, our current system results in unnecessary stress, loss of productivity, defensive medicine, and logjams in our judicial system.

Another call for tort reform came from a dermatologist:

All of these cases and replies are further evidence of how bad tort law is in this country. If, like most of civilization, a plaintiff MUST PAY damages to the winning defendant, it is highly probable that none of these suits would have taken place. The pathetic Band-Aids of tort reform would not change the fact that the doctor and all of his other patients and the whole of society, other than the plaintiff and his client, LOSE as soon as a suit is filed, even when the defending doctor "wins," the dermatologist added.

Some physicians took an even stronger stand. An otolaryngologist commented:

Doctors shouldn't complain about the high cost of malpractice insurance. They should threaten to withhold their precious lifesaving skills until unscrupulous patients and their predatory lawyers back off. The legal system is not set up to be fair to doctors, and the reason is that doctors have allowed it to evolve that way. We only have ourselves to blame, really.

A family medicine doctor reported, "I know directly of at least one case where the case was lost, and the subsequent emotional toll on the physician was catastrophic. Another I know of indirectly where the loss of the malpractice suit was followed by massive clinical depression."

Finally, an ophthalmologist whose lawsuit lasted 7 years said:

I had seen a patient for ptosis of the upper eyelids who also complained of excessive tearing of his eyes. I had found that this was due to laxity of his lower eyelids and recommended repair at the same time. He declined. After the surgery, he sued me because I caused his eyes to tear even though my records documented that the problem was preexisting. Even his wife sued me separately for lack of consortium. He also alleged lack of informed consent. The charges stated that I coerced him into signing the consent on his gurney on the way into the operating room. The fact that the surgical consent was signed 7 days earlier in my office and was witnessed did not influence the judge who allowed the suit to go forward. Seven years of grief and heartache.

Finally, the suit was dismissed the night before trial because the plaintiff's attorney admitted that they had tried all those years to get an expert witness to represent him and couldn't do so. He ultimately had gone to another hospital and had the lower lid laxity repaired (which I had recommended), and his tearing problem resolved.

A wary physician had this advice for colleagues: "Don't give the plaintiff attorney any information. He/she may be fishing for discovery without the cost of discovery. In my case, it was a friendly phone call asking for my side of what happened. I took the call. Wrong. Call your malpractice carrier immediately. Follow the advice of the attorney assigned to you."

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