Demystifying Medicine One Month at a Time

Who Sues?

Time to turn our attention to an unpleasant topic: Lawsuits.

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:

  1. (+) 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.
  2. (-) 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:

  1. (+) 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).
  2. (-) 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.


  1. Alex @ Happiness in this World

    Excellent post, John. Couldn’t agree more with your point that lawsuits likely arise more from poor communication (which communicates a distinct lack of concern) rather than actual bad outcomes. When patients and their families are adequately forewarned about the possibility of complications, angry or resentful feelings are less likely. Of course, we can’t warn about every possibility beforehand, but we can create an atmosphere of honesty, removing ourselves and medicine itself from the pedestal on which so many want it to sit: no process is error-free or comes with a guarantee.

  2. John Ballard

    Another winner.
    Here are a couple of supportive links…

    Better Patient Safety Linked to Fewer Medical Malpractice Claims in California
    Links there to the RAND study and one other.

    Protection Against the Threat of Malpractice Suits Guest post last year at Magie Mahar’s blog. Here is the portion on point.

    Many health care providers will be willing to implement these changes in their practices if the government provided them with cover by setting standards and explaining the standards to both providers and the public. This is partly because most providers really do want to provide the best possible care (and almost all believe they do,) and partly because establishing practice standards could protect against inappropriate lawsuits.

    The most dramatic example of this can be seen in the history of anesthesiology. In the mid-70’s, anesthesiologists faced the highest malpractice insurance premiums of any specialty – often as high as $100,000 a year (and those are 1975 dollars, remember.) The Society of Anesthesiology, realizing that this was threatening the viability of many practices, created a national panel which developed a set of specific standards for anesthesia practice.

    They then created a task force of lawyers and academic experts that offered its support to any practitioner who could document that they had followed the standards but was still being sued. Verdicts against anesthesiologists plunged ,and–since plaintiffs attorneys cannot afford to lose regularly –the number of lawsuits declined sharply Insurance premiums fell by 90%.

    More importantly, complications of anesthesia and deaths from anesthesia also declined .The standards not only had the desired result of ending the malpractice crisis in anesthesia, but also made anesthetic management safer and more effective. This created an impressive win for the patients as well as the doctors.

    This was written before the legislation was passed, but as patterns of best practices become more widely recognized and followed similar results can be expected across the profession, not just for anesthesiologists.

  3. Joe Marlin

    Why are there no specialists in human behavior on your Medical Liability Committee? AS you note and has been recognized for some time good communication from hospital staff leads to patients and families feeling they are listened to and having a better understanding of the issues.

    I’ll withhold any comments on “apology” until I read you on this but I’m beginning to feel we’ve developed a culture of apology for any and all shortcoming we receive from various providers.

  4. elizabeth rosenbaum

    I think some people believe that doctors can fix everything. People refuse to believe that they aren’t going to be cured and families believe that nothing bad will happen. When this does not occur, you are left with the scenario of “angry” patients and family in the result of a death. The bubble has burst, and these families become more disillusioned than ever because death has clouded their ability to make good choices.

    There are some bad doctors out there. Doctors who should NOT be doctors. I have to ask why it is so difficult to remove them. You can say the same thing about a bad teacher. Having been a teacher, I ask myself all the time why is this teacher still teaching.

    As a patient here, and not a doctor, I will tell you that I know surgery is a risk. Any medical procedure is a risk. Yes, mistakes do happen even to the best doctor.

    Sometimes when I read a story about a doctor being sued, I take a good look at the doctor. Why did that person go to this doctor? Can’t they see just by speaking to them that there are better choices out there? I think because of our inability to insure everyone, people make choices based on what they can and cannot afford.

    What is the medical community doing to flush out these bad eggs?!

    John…I think writing before coffee is not a good idea. And, I only have once cup a day. I think that’s ok?! lol

  5. Emily B.

    Good post! The trend in my state (Washington) seems to be towards going beyond apologies toward preemptive monetary recognition of certain types of errors. I think the idea is that it builds patient trust to simply admit certain types of clear error (e.g. left sponges or wrong-site amputations) and to pay a fixed amount in settlement upfront– without the patient even bringing suit. What do you think about this idea? Too costly?

    You also hinted at the link between malpractice suits and lack of patient information. Do you think it would help to allow patients to access the National Practitioner Databank, so that they would know in advance how many malpractice claims their provider had against them? I wish I had this type of information available to me, as a patient. I am curious to hear your perspective as a doctor and next post on this subject!

  6. Boris

    Interesting study on the malpractice issue done by Public Citizen at this link: The 0.6 Percent Bogeyman

    Evidently, as a percentage of medical costs, malpractice awards and premiums are at record lows.

  7. Sheila

    I’d like to add an alternative view from a patient who was the recipient of medical error with a poor outcome. An error occurred through no fault of the patient’s condition other than she happened to offer up tissue for biopsy which was ruined, partly due to ineffective protocol and poor practice. The patient chose not to pursue legal options because she coudn’t imagine spending her remaining days angry and embroiled in negligence pursuits. Certainly not because the facility, administrator, physicians or their agents expressed remorse.

  8. carol levy

    Despite the doctor who paralyzed my face, during a surgery named after him, perjuring himself “We have little difficulty in concluding that Dr. Jannetta’s testimony at deposition was different than, or inconsistent with, the testimony at trial.” Levy v Jannetta, CCP Allegheny County, GD 81-7689; appeal -J. A370017/92 Levy v Jannetta et al, No. 00150 Pittsburgh, 1992. settled, 1995″ (and proof of negligence and malpractice), my lawyer forced me to settle. 3 weeks later Governor Tom Ridge nominated him for Pa. Secretary Of Health (Peter J. Jannetta, 1995 – 1996). Neither the hospital, neurosurgical association or state licensing board sanctioned him. His fellow neurosurgeons refused to testify saying privately there was malpractice but that they would not testify.
    If the medical community and the state stopped protecting the bad doctors I have no doubt but that malpractice and the number of malpractice claims would go down considerably.
    Thank you.
    Carol levy
    author, A PAINED LIFE, a chronic pain journey

  9. linda lewallen

    To the patients who had bad out comes I am sorry that you were not happy with the results of your medical care. However, in this time of suits for anything and everything, physicians discuss at length with patients all possible complications and then request the patient to sign a consent. When the patient signs the consent, he/she presumably accepts responsibility for signing in full knowledge of the possible outcome–good or bad.

    When American patients start accepting responsibility for their actions, they might be less disappointed when they don’t like the outcome. Ridiculous patient expectations far out weight bad medicine by incompetent physicians.

  10. Carol Levy

    Linda seems to want to put on rose colored glasses; that doctors do not commit malpractice. Here is just one story:

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