Medical Economics Features Jim Beasley Jr.
In the spotlight
Medical Economics
April 04, 2008
Doctors who became lawyers: What they want you to know
MD-JDs share provocative lessons they learned from looking at medical practice from an attorney's point of view
Orthopedic surgeon Barry Lang was furious at attorneys when he was sued for malpractice in 1988. So after 23 years of medical practice, Lang went to law school and became an attorney, intending to represent physicians.
When no defense law firm or insurance carrier would hire him, he started representing plaintiffs. Now, the same physician who once claimed that attorneys "put sharks to shame" by their ability to sense blood in the water, has a very different view from the other side of the fence. Ironically, he now advises doctors that the most effective way to deal with a lawsuit is to "calm down and not take it personally."
It may seem impossible for a doctor accused of injuring a patient to not "take it personally." Yet each of the dozen MD-JDs we interviewed echoed that theme, citing it as a key insight they'd learned in legal practice but had not fully appreciated as doctors. "Everyone gets sued, lawyers also," says Arthur Schwartz, an otolaryngologist-attorney in Annapolis, MD. "It's the American way. Getting too upset only jeopardizes your defense." True, it's difficult not to be upset when you're named in a suit and it could affect your time, reputation, and income. Still, letting your feelings show in court could ultimately hurt you.
Few can understand the unique problems doctors face better than an attorney who's also a physician. (Lang and Schwartz are among an estimated 6,000 physicians who've become attorneys, although there's no official count.) Because of their experiences, MD-JDs have much to teach about how to avoid getting sued and how to triumph in court when litigation is unavoidable. In fact, several of those we spoke to conduct grand rounds and give risk management lectures at hospitals on the art of staying out of a courtroom.
Some of their viewpoints on medical malpractice have changed dramatically since they earned their law degrees. Their advice to doctors contains few "Eureka!" revelations; the continuing surprise to them is how often doctors still fail to heed these important messages.
Mixed in among the advice are shared insights and beliefs—some substantiated by research, others based on anecdotal evidence. Chief among them is the assertion that whether you're sued—and, often, whether you prevail—generally has more to do with your bedside manner, demeanor, and attitude than with the actual care you provided.
The power of explaining poor outcomes
"Doctors could put us out of business if they spent more time talking to patients and families," claims Lee Goldsmith, an MD-JD in Englewood Cliffs, NJ. He says that's especially true when the outcome is less than optimal.
"People can understand and accept mistakes," says Armand Leone, a radiologist-attorney in Glen Rock, NJ. "But if they think a physician is avoiding them or covering something up, they seek out attorneys. The first thing most of my potential clients say is, 'The doctor didn't come see me. He wouldn't talk to me.' "
"For example, a woman wanted to sue her doctor for missing a diagnosis of breast cancer," says Leone. She'd had a mammogram and was told everything was fine. Two months later, she felt a lump, returned to the doctor and a biopsy confirmed cancer that the mammogram didn't show. A two-month delay didn't change the treatment, prognosis, or outcome.
"Either the doctor did nothing wrong, or his error didn't make any difference," Leone says. "I explained why I wouldn't bring a lawsuit. But if the doctor had spent the time sympathetically explaining this to the patient, she might never have sought out an attorney."
The converse is also true: "Humility prevents malpractice suits and wins cases," Goldsmith asserts. "In my experience, a doctor who sympathetically tells a family, 'I'm sorry. Things didn't go the way we expected. Here's what happened,' often won't get sued."
There's mounting evidence that disclosure of adverse medical events or medical errors, coupled with an apology and offer of a financial settlement, if necessary, can sharply reduce malpractice suits and the associated legal costs. That, in fact, is the premise of the advocacy organization, Sorry Works! The University of Michigan Health System, for one, credits the Sorry Works! approach with a substantial decline in the number of claims and in malpractice attorney fees, which dropped from $3 million to $1 million yearly.
Suzanne Fidler, an MD-JD in Newport Beach, CA, who practices as an internist and a lawyer, is also an advocate of the power of dialogue. Fidler often explains to clients how a poor outcome may be due to an unavoidable complication, and is not evidence of negligence. "The pa-tients would never have contacted me in the first place if the doctors had done this," she contends.
Arthur Schwartz agrees. "I reject 98 out of 100 potential cases," he says. "I don't see a lot of negligence, but I sure see a lot of disgruntled patients."
When it's time to adjust your attitude
If, despite your best efforts, you end up in court, it's crucial to keep your emotions in check. All those we spoke to agreed that unrestrained anger or hostility will sabotage your defense.
That's why James E. Beasley Jr., a Philadelphia attorney who has a pilot's license along with his MD-JD, has little doubt about the outcome of his upcoming trial against a Pennsylvania physician. "The doctor is so arrogant and so angry about being sued. He acts as though he never saw a physician who did anything wrong," Beasley says. "The jury will absolutely hate him."
Beasley described another physician who clearly caused his own lawsuit. "A surgeon was assisting in repairing an aortic aneurysm," says Beasley. "It was an eight-hour procedure and the patient died. The family was naturally upset but when they tried to speak with the doctor, he said he didn't have time right then. The family member got angry and said he'd sue. The surgeon replied, 'Okay, get in line,' and walked away.
"It would have taken 30 seconds to express sympathy, give a brief explanation, and say he'd call tomorrow to have a more complete discussion," says Beasley. "The surgeon didn't do anything wrong, but his attitude prompted the family to seek out a lawyer. Doctors who answer patients' questions often avoid litigation."
No one denies that anger is often warranted. Often, a doctor's reaction stems from the conviction that his good intentions and hard work are evidence that he was not negligent. And many doctors see a lawsuit as an assault on their integrity. But, as Donald J. Pal-misano, a vascular surgeon in Metairie, LA, and former AMA president, learned in law school, "Intent has little to do with getting sued. The issue is whether a deviation in the standard of care resulted in a patient injury—not good or evil."
Eric Shore, a Philadelphia DO-JD, was sued three times in his 26 years of medical practice. Now he mainly defends doctors and uses his experience to ease the process for them. "Too much anger affects your mental health and your practice and impedes how effective you'll be in helping your attorney defend you," he says. "Everyone makes a mistake. Doctors who look at the facts objectively have a better chance of winning."
What physicians don't appreciate is that juries are inclined to give them the benefit of the doubt, Beasley adds. "Doctors think the deck is stacked against them, but usually the opposite is true," he says. "Juries look upon doctors as healers and don't expect perfection—if the physician is a sympathetic witness."
Don't overlook this basic truth
Similarly, many malpractice cases are won—or lost—on the basis of the medical record. "We were all taught in medical school to document whatever substantiates the treatment protocol, but it doesn't always happen," says Arthur Schwartz. And, no matter how many times defense lawyers, insurers, and medical societies tell doctors not to alter patient records, MD-JDs say they regularly see charts that have been surreptitiously changed—a physician's worst documentation offense.
"A doctor knows a patient is unhappy," says Eric Shore. "So he'll review the record and then realize he forgot to note a discussion about some risk or potential complication. Unless he dates it properly, that will come back to haunt him. No matter how innocent his intent, it will appear to a jury that he's trying to deceive."
Alterations are invariably discovered. "Doctors may use a different color ink or the writing is cramped and squeezed in between two dates where it shouldn't be," says Lang.
He recalls an obstetrics case in which he expected to see an ultrasound report in the medical chart. The physician insisted he never did one. "We subpoenaed the patient's health plan where the doctor had submitted his bill for the ultrasound. The insurer turned over the records, and the doctor was forced to settle. Often, the hospital has the same record the doctor is trying to hide or has altered."
Other documentation reminders:
"Note in the record if you want a patient to return for follow-up care. Record whether he returns or not, and your efforts to get him to return. Invariably, if there's a poor result, the patient will say, 'Gee, I was never told to come back for a test,' " Schwartz says.
Documenting refusals of treatment is important, too. "If a patient says he won't go for the colonoscopy you recommended, document that," says Lang. "If the patient later develops colon cancer, you have a defense. Without noting the refusal in writing, the patient could say he was never told. Then it's a credibility contest for a jury."
It isn't enough to explain the risks, benefits, and alternatives to treatment, adds Palmisano. "A patient who wants to sue will claim he didn't remember you saying any of that. If it's in the record, a lawyer will probably reject the case."
Make sure you test and follow up
"If a patient has pneumonia and is treated with antibiotics, a follow-up chest X-ray is essential to make sure the infiltrate had cleared and there's no underlying carcinoma," says Leone. "A follow-up isn't defensive medicine. It's the standard of care."
Ruling out the worst-case scenario is important. Take a patient who complains of heartburn or chest discomfort. "Because the patient is young and doesn't fit the profile for heart disease, the patient isn't given a cardiology workup," says Leone. "Maybe it's just reflux. But it also could be angina. Doctors should ask themselves which one can kill the patient, and rule that out."
Reports that "fall through the cracks" also keep plaintiffs' attorneys busy. "Lab reports, consults, and X-rays come in and they aren't looked at," says Goldsmith. "They get filed away before the doctor even sees them. Every doctor needs a system, a tickler file, to make sure these things aren't lost."
Recognize, too, that you're just one part of a team of care with nurses, pharmacists, and other physicians. "It's common for a physician to prescribe something that could interact with what another doctor has ordered," says Suzanne Fidler. "Doctors need to make sure they're on the same page with other professionals on continuity of care." It's important to ask at each visit what other treatments, medical care, or drugs a patient might be taking.
Doctors also need to be realistic about what's involved in mounting a legal defense. One of the greatest misconceptions physicians have about the law, according to Joseph McMenamin, an internist-attorney in Richmond, VA, is that they underestimate the time and energy needed to defend themselves.
"Litigation is a substitute for war," McMenamin says. While it helps to view a legal claim dispassionately and avoid taking it personally, he and others agree, it's crucial to do what's necessary to mount a defense. "Preparing for a deposition takes time," he adds. "Educating your lawyer about the case takes time. Because I'm a physician, I've been in the doctor's shoes and know just what it takes."
The scope of frivolous lawsuits
Many doctors believe that frivolous lawsuits are rampant, but MD-JDs we spoke to dispute that notion.
"Lawyers aren't villains," says Donald J. Palmisano, a vascular surgeon in Metairie, LA, and former AMA president, who's spent years battling trial lawyers while lobbying Congress for tort reform. "Doctors get rightly upset over suits that have no merit, but there are good lawyers on both sides of the malpractice battle."
That's no consolation if you're the doctor named in a case in which you played a minute role, or none at all.
Nonetheless, meritless suits are on the wane, MD-JDs claim. "Specialists like obstetricians face greater risk, but that isn't so for most doctors," says attorney Arthur Schwartz, who practiced as an otolaryngolo-gist for 28 years.
As an attempt to curtail frivolous lawsuits, 23 states now require some form of documentation, typically by an expert witness, to certify that a case has merit. "When Pennsylvania adopted that rule in 2003, malpractice filings dropped substantially," says James E. Beasley Jr., a Philadelphia physician-attorney. "Before that, some attorneys brought cases because they didn't think the doctor or his insurer would have the energy to fight it. So they just hoped for a quick settlement. That's not true anymore."
Many doctors view the contingency fee arrangement as a double-edged sword. On the one hand, it makes it easier for any patient to try to sue a doctor. On the other hand, the contingency fee arrangement may help prevent frivolous cases, contends Eric Shore, a DO-JD from Philadelphia. Not only do lawyers not get paid if they lose a case, but they must use their own funds to hire experts and pay litigation expenses. "To prosecute a malpractice case up to trial might cost my firm between $20,000 and $50,000, if not more," says Shore.
Tips from doctor-lawyers
• Spend more time talking to patients about negative outcomes or errors. Be upfront and humble if treatment doesn't work out as hoped.
• Explain unavoidable complications and how they differ from negligence.
• Remember, good intentions have nothing to do with getting sued, so try to deal rationally with the unfairness of it.
• Do not alter the records.
• Document refusal of treatment, if it occurs.
• If you're not sure about the standard of care for a particular patient or diagnosis, find out what that standard of care is.
• Make sure you are aware of your patient's other treatments, medications, professionals seen, and drugs prescribed.
• Allow sufficient time to prepare for a defense.
• It's important to be a sympathetic defendant, as well as being in the right.
• Keep your emotions in check when in court. Try to psych yourself into being calm, logical, and helpful to the jury.
Using medical experience to help physicians in court
Because of their medical training, MD-JDs are quicker to detect when an expert witnesses is advancing a fanciful theory.
"It's often easier to choose an appropriate witness or expose a fraudulent one," says Suzanne Fidler. "In a recent case, one expert didn't realize that I'm a physician. It's on my business card and Web site but when I'm wearing my lawyer hat, I don't always volunteer that. He was saying things that I knew were false. My training enabled me to damage his credibility pretty quickly."
Joseph McMenamin agrees. "Being a doctor helps me tell when an expert witness is blowing smoke," he says. "As a doctor, I speak the same language and can spot the holes in their theories faster than a non-physician could."
Medical training also helps in winning over juries. "A doctor's job is to convey complicated concepts in language lay people can understand so the patient will follow your advice," he says. "That translates to juries as well, who don't have medical education. It's easier for an MD-JD to explain things to jurors."
