Preparing for a malpractice suit can help minimize its impact on clinicians
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Preparing for the reality — and strong likelihood — of a medical malpractice lawsuit can help clinicians survive the experience, according to a speaker at the CSRO Fellows Conference.
“You will probably get sued,” James S. Haliczer, Esq., co-founder and managing partner of the law firm Haliczer, Pettis & Schwamm, told attendees. “But do not be too concerned about publicity. It meant a whole lot to you. But, truth be told, it will not mean a whole lot to anybody else.”
While the likelihood of being sued is high, the idea that medical malpractice suits are everywhere is “an urban myth,” according to Haliczer, for one key reason: “They are expensive,” he said. “If it is going to cost me $250,000 to file a suit, I am not about to file for a frivolous claim.”
Haliczer went through the “anatomy” of a medical malpractice lawsuit and explained what clinicians could expect from the process. He noted that 50% of cases involve inpatient care and 50% are outpatient. Looking closer at why these events happen, 35% involve a failure to make an appropriate diagnosis, while 20% are for surgical mishaps, 20% for treatment errors and the remainder are for miscellaneous incidents.
“Lawsuits arise out of the ABCs,” Haliczer said. “Anger, a bad outcome and communication.”
While the legal basis of suits can vary from state to state depending on the requirements and laws, there are four components that are found in all states: duty, breach, proximate cause and damage.
Duty is defined as “reasonable care” by the physician, according to Haliczer. Breach is when that standard of care is not delivered. This leads to what Haliczer described as the “battle of the experts,” in which the expert hired by the patient and the expert hired by the physician present their case as to why, or why not, standard of care was followed.
Haliczer described proximate cause as “another way of saying negligence.”
In terms of damages, Haliczer stressed that putting a dollar sign on “pain and suffering” is what tends to “rile everyone up.” The headline-grabbing $100 million verdicts are constantly under consideration in the legal and medical communities. “There is continuing and ongoing debate about tort reform to better define these amounts,” he said.
With that, Haliczer dug into the actual demands a suit may claim on a physician. “The actual time you will have to spend on this is limited,” he said.
At the outset, there will be motions and hearings largely involving the lawyer. While depositions may take some time, there should only be a handful of actual conferences with the legal team and experts.
The clinician may be required to complete interrogatories, or written questions, that include a request for records and other formal questions about what happened and why certain decisions were made. An administrative assistant or other support staff member may handle a lot of the basic logistical questions, while the clinician will provide their own statements about the medical decisions.
When it comes time to give an actual oral statement, Haliczer said that the best answers a clinician can provide are the simplest answers: “Yes, no, I don’t know, I don’t remember and I don’t understand the question,” he said.
While trial preparation can be a “serious time suck” due to the labor-intensive process of rehearsing testimony and reviewing depositions, Haliczer suggested that 95% of cases are settled out of court.
Trials, however, last an average of about 10 days. “This is a huge commitment on your part,” Haliczer said. “You can’t practice medicine in the day if you are in a courtroom.”
Haliczer closed by offering some practical advice to avoid being sued. “Practice medicine within the accepted standard of care,” he said. “Behave like a reasonable rheumatologist.”
Another easy way to prevent a lawsuit is to be honest when explaining everything from diagnoses to test results. “It is also important to manage your patients’ expectations,” he said, and suggested clinicians avoid promising complete recovery or worst-case-scenario disease progression if those outcomes are unlikely.
Also, be honest. “If something goes wrong, tell them what happened,” he said. “Explain it in a way that makes them believe you. It is not just what you say, it is how you say it.”
Haliczer’s final piece of advice was to treat patients with respect and dignity. “Listen to them,” he said.
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Haliczer JS. Medical Malpractice & Risk Management. Presented at CSRO Fellows Conference; March 13, 2021. (virtual meeting).
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