Who files them?
Why? And what actually happens?
There have been oceans of ink spilled about medical malpractice. An oversimplification of the various positions on malpractice and malpractice reform goes something like this:
- (+) Malpractice suits are good. They keep healthcare professionals and hospitals on their toes; if the threat of a big payout improves safety and quality, then lawsuits provide an important regulatory function. Also, they give the vulnerable patient a chance to rectify an error, a mishap, or an injustice.
- (-) Malpractice suits are detrimental. Yes, there are outliers, but 98.5% of medicine is practiced safely and effectively. Bad outcomes happen as part of the natural course of medical practice. As long as patients are informed beforehand about the risks inherent in any medical undertaking, they must understand that there are no guarantees in life.
Here, too, is an oversimplification of the politics of malpractice reform:
- (+) Democrats: Trial lawyers defend the little guy, seek redress and justice, and obtain compensation fairly where it is due (not to mention contributing mightily to our political campaigns).
- (-) Republicans: Trial lawyers are opportunist ambulance chasers. They drive up the cost of doing business with their frivolously filed lawsuits, demanding unjust compensation from hardworking professionals, and have thereby created a culture of overly expensive and defensive medicine. We need malpractice reform, consisting of caps on jury awards and/or a fair and reasonable compensatory scheme for damages.
As you might imagine, the truth lies somewhere in between.
For several years, I’ve sat on our hospital’s Medical Liability Committee. We meet once a month to discuss claims against the hospital. The committee consists of risk managers, hospital lawyers, and more than a dozen doctors representing different subspecialties.
We review the claims in detail, and make recommendations about what strategy to pursue: continue defending, offer settlement, or get more information. Our panel of doctors are wise and experienced–both in medical practice and claims analysis. From the perspective of a doctor named in a suit, obtaining this type of expert advice is very helpful, and can really bring comfort if the committee opines that the standards of medical care practiced were met. Validation from peers can soften the blow of being named in a suit.
Suits come from patients (or their families) that have experienced a bad outcome. Bad outcomes range from inadvertent loss of a tooth during a medical procedure involving intubation or endoscopy (breathing tubes or fiber optic telescopes put through the mouth), all the way to death.
The difficulties in a suit involving death are myriad: Death can be an inevitable consequence of a disease process; however, if the patient (subsequently the family) is not aware of that, the death feels “wrongful.” Emotions are always raw in death, all the more so when a suit is filed since it prevents everyone involved from achieving closure.
This is why communication, or lack thereof, is at the core of most suits. Angry patients and families are the ones that sue.
Patients that have received excellent communication about their conditions, and the risks and benefits of treatments vs. non-treatment (opting out), are seldom if ever disappointed with their medical care. Even when a bad outcome occurs, patients and families are grateful for the efforts on their behalf, and for honest and open communication.
Lawsuits take years to bring to fruition. There are inevitable delays, as evidence is gathered, the parties to the suit are deposed, and experts are retained to offer their opinions.
For suits that go to trial, the hospital’s lawyers work with outside counsel to mount the defense. There is simply too much other legal work (not just lawsuits) for the hospital lawyers to handle the defense.
Malpractice patterns and payouts vary by locality, so the hospital lawyers and risk managers have to stay abreast of local developments in the legal community.
Interestingly, there’s a growing body of knowledge about hospitals adopting a culture of apology, assuming less defensive postures. The early experience indicates there is greater satisfaction on both sides with this practice. Stay tuned for more on apology in a future post.