LIES, MORE LIES, AND LAWYERS—WHY THE LAW CAN SUIT YOU
From the American Academy of Family Physicians’ 2005 Scientific Assembly, San Francisco
Richard G. Roberts, MD, JD, Professor of Family Medicine, University of Wisconsin Medical School, Madison; Vice-Chair,
PIC Wisconsin Professional Liability Insurance Company; and Past President, American Academy of Family Physicians
| Basic steps: service of process; discovery; pretrial proceedings; trial/settlement process; appeal
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| Service of process: case scenario—physician returns home from medical meeting, office overwhelmed by patients, and deputy
sheriff presents summons and says, “you’re being sued for malpractice”; comments—in many jurisdictions today,
summons served via mail; serving process typically in form of summons and complaint, requiring answer
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 | Points: inform family members, partners, and practice staff early on about problem; tell them suing patient should no
longer be seen
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| Approach for dealing with plaintiff and family members: send suer 30-day notice of intent to terminate medical care;
continuing to care for family members of plaintiff “tough issue”
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| Rhythm of process: typically, 18 to 24 mo between time patient perceives harm and time lawsuit filed; process often frustrating
and time consuming; frequently, months go by without anything happening; speaker’s advice—lawyer should lay out
expectations about timing, but also admit actual timing of events unpredictable; comment—once lawsuit initiated, chances
for making amends with patient “very low”
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| Discovery process: intended to facilitate formal trial proceedings by allowing both parties to have better understanding of
facts; plaintiff’s lawyers often acting on incomplete and incorrect information
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| Interrogatory: not always requested or required; involves responding to series of written questions sent by plaintiff’s attorney;
physician should carefully read questions and seek legal advice in answering them
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| Deposition: almost always required; defense lawyer typically pays for expenses of plaintiff’s witnesses and plaintiff’s
lawyer pays for expenses of defense witnesses; all information obtained admissible in court; physicians should be careful
how they dress and handle themselves during process; videotaped depositions—becoming increasingly common,
since expert witnesses often unavailable for trial
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| Pretrial proceedings: vary from state to state; mediation—informal process in which third party tries to negotiate solution;
arbitration—formal process; typically, defense and plaintiff lawyers each pick one arbitrator, and arbitrators usually
pick third one; arbitration may be binding or nonbinding (Kaiser Permanente has contractual requirement for those in
its health plan to submit disputes to binding arbitration); administrative panel—technique used in some states; typically
consists of physician, lawyer, and lay person
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| Wisconsin experience: compensation panel—formal hearing approach used in 1970s; findings presentable in trial; mediation
approach—emerged in 1980s as part of tort reform; often works quite well; allows plaintiffs opportunity to “get it
off their chest,” and 20% of claims go no further
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| Trial or settlement processes: venues—most cases heard in state courts; occasionally, federal courts involved (federal
courts often “a little more friendly” toward physicians); civil vs criminal cases—most proceedings civil; criminal cases
rare and usually involve gross negligence or intentional harm; untoward publicity—can be “quite painful,” especially in
smaller communities; let family members know what to expect; tactical issues—attorney should keep physician abreast of
maneuvers being tried; negligence issue often “tough judgment call”; courthouse steps settlements—may result in both
sides giving plaintiff some money; generally not good for physician because any settlement reportable to National Practitioner
Databank; in most states, illegal for insurance company to settle without physician’s permisssion; court
appearance—dress appropriately; conduct self professionally; have family members present in court; impact on
practice—legal proceedings take considerable time away from practice
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| Questioning and answering techniques: rhythm—pace response to questions (best to hesitate few seconds before responding);
face and talk directly to jury in polite way when responding to question; demographic information—designed to find
out “who you are as a person”; may involve questions about volunteer work; defining issues—plaintiffs’ lawyers often
ask physicians to define things; give best possible definition or cite criteria used to define problem (eg, medical condition);
“yes” and “no” questions—typically used by lawyers to “pin physicians in”; typical questions may include “isn’t
that right?” or “isn’t that what you said?”; watch for trick questions; leading questions—include questions such as, “then
you did this and that?”; legal counsel should protect physician from these questions (may be grounds for objection)
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| Objection process: mainly designed to lay grounds for appeal; evidence allowed into court proceedings or deposition
grounds for dismissal by appeals court; objection means certain piece of information should not be allowed or used in
making decision
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| Other techniques: hypothetical questions—lawyer should protect client by saying particular question hypothetical and not
proper or appropriate in setting; references to supposedly authoritative sources—authoritative sources do not exist, just series
of opinions by various writers; one cannot say that conclusion drawn in particular text necessarily applies to particular
patient; attorney misquoting or misstating physician—be alert and calmly correct quote
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| Specific tips for giving testimony: tell truth; do not argue or become angry; try not to guess meaning of question (if in doubt,
say, “I don’t understand the question; what are you trying to ask me?”); do not volunteer information; never interrupt question
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| Trick questions: compound questions (several questions in one; ask lawyer which question to answer first); questions that
assume facts that are not true (physician must correct facts); extremely lengthy questions that end with, “isn’t that right?”
(ask for clarification)
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| Do’s and don’ts in giving testimony: do—say “I don’t know” when answer unknown; request to see documentation; treat
everyone in process with respect; ask that questions be repeated; request breaks; strive to answer most questions with
“yes” or “no”; don’t—use phrases like “honestly”; use global phrases like “always” and “never” (be precise); let guard
down; give long answers; be afraid to look to lawyer while preparing to answer question; say “uh” and “hum” during
deposition
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| General remarks: decisions at appeals level based on matters of law (issues of law and policy); process typically plays out
over long time and requires considerable money, time, and energy
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| Impact of legal process: average summons and complaint takes 1 wk of professional time; appeals process requires considerable
time and focus; measures for coping—develop support network; share feelings rather than details of case; professional
counseling (many medical groups have peer networks that physicians can utilize); take opportunity to reassess self,
professional career, and family relations
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| Personal vs insurance company lawyers: fine to use company lawyer if he or she doing good job; if at odds with that lawyer,
use own lawyer; avoid representing self in court
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| PROTECTING ASSETS AND COUNTERSUITS
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| Protecting assets: in some states (eg, Florida), physicians in high-risk specialties (eg, neurosurgery, obstetrics) may post
bond or move assets to offshore accounts or someone else’s name, rather than carrying insurance; physicians following
these options must be very careful
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| Countersuits: have very low probability of success; one usually must prove that attorney on other side was incompetent or
negligent in some way that harmed your reputation
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| MALPRACTICE AND MALPRACTICE MYTHS
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| Historical aspects: malpractice issues date back to Code of Hammurabi in 1780 BC; first British common law case occurred
in 1375, and first American case in 1794; several physicians refused to do certain procedures during Civil War for fear of
being sued; medical associations formed in early 20th century to help defend physicians
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| Recent malpractice crises: mid 1970s—several large insurance companies stopped providing malpractice insurance because
too expensive; this resulted in many physicians not having coverage and formation of several doctor-owned insurance
companies; mid 1980s—reinsurance market collapsed, making it impossible for insurance companies to get reinsurance
at affordable rate; 1990s and early 2000s—economic boom led to more doctor visits; crisis began in soft market with underpriced
polices and surge of malpractice lawsuits; when stock market faltered, reserves lost by insurance companies,
and ≈13 companies walked away from malpractice insurance
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| Myths about malpractice: 10) malpractice is new problem; 9) system works well (only 1 in 10 harmed patients files claim,
and of these, only 1 in 20 receive money); 8) it’s all about money (really, it is people wanting to be heard and make sense
out of bad things that have happened to them); 7) “kill all lawyers” (would lead to tyranny); 6) lawyers decide standards
(false; physician cannot be sued without expert testimony); 5) only plaintiff lawyers profit (plaintiff typically gets ≈33%,
plaintiff lawyers ≈25%; defense lawyers 20% to 25%, and physicians ≈20%); 4) it’s all about frivolous suits (most people
who sue have terrible outcomes); 3) there is nothing we can do; 2) judges and juries favor plaintiffs (not true); 1) all tort
reform is good
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| Steps to filing claim: 1) untoward or unexpected outcome; 2) patient forms hypothesis (“maybe I just misunderstood the
doctor”); 3) patient tests hypothesis with others, then consults with “doctor friend”
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| DIMENSIONS OF MALPRACTICE
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| Driving forces: frequency of suits and severity of awards; remarks—possibility of family physician being sued 1 in 40,000;
therefore, physician with 5000 patient visits yearly at risk of being sued once every 8 yr; what has been changing is not
frequency of suits, but size of judgments (average “bad baby” claim now in $2 to $3 million range; average jury judgement
>$1 million)
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| Other dimensions: premiums—have dramatically increased; obstetricians in Dade County (Florida) spend ≈$225,000 to
$250,000 annually for coverage; defensive medicine costs—very high; >80% of physicians order more tests than necessary
and make more referrals because of liability concerns; emotional toll of litigation—even worse than financial cost
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| Practice changes resulting from malpractice litigation: stop seeing certain types of patients; discontinue certain types of
services, regardless of whether in high- or low-risk specialty or area
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| Why malpractice has not been fixed: different perspectives on tort system and on knowledge; law students taught there is
no correct answer because rules made by people “and they change all the time”; medical students taught there is correct
answer that, if applied correctly, will bring about good result; comments—both points of view incorrect in their extremes;
speaker tells medical students 50% of what they learn will be obsolete by time they start practice; solutions—public education
(help people understand what to expect from health care); improved defensive strategies
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| Definition: risk management is style of practice to help reduce injuries to patients and minimize size of award or loss
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| Most frequent claims: failure or delay in diagnosis (most commonly of breast cancer, due to reliance on false-negative
mammograms); claims for obesity-related conditions increasing; negligent obstetric practices (claims involving oxytocin
most common); negligent fracture or trauma care; failure to obtain timely consultation (if physician cannot figure out
problem in 3 visits, seek help); negligent drug treatment (warfarin [Coumadin] most dangerous drug; advise patients on
Coumadin about vitamin K intake); negligent procedure (usually done by tired or distracted physician); failure to obtain
informed consent
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| Four Cs of risk management: compassion, communication, competence, and charting; compassion—patient attitude plays
big role; when things “getting rough,” try to work them out (failure to pay bill may indicate problem); if there is misunderstanding
over bill, try talking with patient before handing matter over to collection agency; BATHE technique—what is
bothering patient? (Background); how is it affecting you? (Affect); what is most troubling about that? (Trouble); how are
you coping with that? (Handling); let patient know you care (Empathy); communications—work with others on team; do
not fight, eg, with nurses; competence—usually not major issue; ask for help if patients or family members unhappy, if
medical problem confusing, or if patient gravely ill; charting—should be timely, legible, and objective; avoid derogatory
language; use electronic records if possible; otherwise, they should be typed or written legibly
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| Special health courts: currently under consideration; now used in several countries; in Sweden, most patients use dispute
resolution panels comprised of 3 physicians
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| Personal attorney and friend is also insurance company attorney: physician must determine if that lawyer would be effective
advocate; retain another attorney if conflict of interest possible
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| Binding arbitration for private practice physicians: Kaiser appears to spend as much money on cases going through arbitration
as those physicians who utilize traditional litigation route
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| Dealing with patients where obvious errors made: 1) issue prompt apology; 2) do not be too quick to conclude that major
error made (physician who writes perinatal asphyxia in chart is medically incorrect 90% of time and 100% legally inflammatory)
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Educational Objectives
| The goal of this program is to educate the listener about medical malpractice and steps to minimize chances of lawsuits. After
hearing and assimilating this program, the clinician will be better able to:
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| 1. List the 5 steps involved in litigation.
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| 2. Describe appropriate approach to testifying at a deposition or trial.
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| 3. Explain the implications of the legal appeals process.
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| 4. Cite the myths about malpractice.
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| 5. Implement risk management techniques in medical practice.
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Discussed on This Program
Phytonadione (vitamin K) [AquaMEPHYTON, Mephyton]
Warfarin sodium [Coumadin]
Suggested Reading
Berlinger N: Fair compensation without litigation: addressing patients’ financial needs in disclosure. J Health Risk Manag
24:7, 2004; Bradford EW: Four cases that test your malpractice IQ. Med Econ 82:40, 2005; Budetti PP: Tort reform and the
patient safety movement: seeking common ground. JAMA 293:2660, 2005; Chervenak FA, McCullough LB: Ethics and
growing legal crisis in medicine. Croat Med J 46:724, 2005; Fitzpatrick JM: Disclose your malpractice history. Med Econ
82:68, 2005; Jerrold L: Litigation, legislation, and ethics. Are you a doctor? Am J Orthod Dentofacial Orthop 128:547,
2005; Johnson LJ: If your patient sues in small claims court. Med Econ 16:82, 2005; Kelly CN, Mello MM: Are medical
malpractice damage caps constitutional? An overview of state litigation. J Law Med Ethics 33:515, 2005; Klein CA: Damage
caps – another view. Nurse Pract 30:22, 2005; Lieberman JA 3rd , Stuart MR: The BATHE method: incorporating
counseling and psychotherapy into the everyday management of patients. Prim Care Companion J Clin Psychiatry 1:35,
1999; Lyons J et al: Medical malpractice matters: introduction. Curr Surg 62:529, 2005; Nelson JC: Medical liability crisis
unites physicians as advocates: AMA works for national reforms. Md Med 6:48, 2005; Porat G: I stood up to my “lawyer
patient.” Med Econ 82:61, 2005; Rice B: Ten ways to guarantee a lawsuit. Med Econ 82:66, 2005; Roberts RG: A shoe-in
for malpractice. Am Fam Physician 68:567, 2003; Roberts RG: Seven reasons family doctors get sued and how to reduce
your risk. Fam Pract Manag 10:29, 2003; Roberts RG: Taming the malpractice wildfire. Physicians, patients, and the public
can cool the flames of litigation. Postgrad Med 114(6):9, 2003; Roberts RG: Understanding the physician liability insurance
crisis. Fam Prac Manag 9:47, 2002; Schwartz VE: A prescription for litigation disaster. Healthplan 42:12, 2001; Studdert
DM et al: Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA
293:2609, 2005; Wisk TM: Liability in a volunteer setting. Plast Surg Nurs 25:152, 2005.
Faculty Disclosure
In adherence to ACCME guidelines, the Audio-Digest Foundation requests all lecturers to disclose any significant financial
relationship with the manufacturer or provider of any commercial product or service discussed. The following has been disclosed:
Dr. Roberts is vice chair of the PIC Wisconsin Liability Insurance Company.
Dr. Roberts was recorded September 29, 2005, at the Annual Scientific Assembly of the American Academy of Family Physicians,
held in San Francisco. The Audio-Digest Foundation thanks Dr. Roberts and the American Academy of Family Physicians
for helping to make this program possible.
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