Fighting Back Against Frivolous Medical Lawsuits

During their career, many physicians will probably be sued not once, but more than once. So the message is: If you practice long enough, it's going to happen to you.

What's the purpose of Medical Justice?

I'm a neurosurgeon and actually practiced in a state (Indiana) that had supposedly licked the malpractice issue. Namely, they had issued reform of the tort system to make it more appealing for physicians to practice. Nonetheless, I still was eventually sued for what I believe to be a frivolous reason. And I found I was in good company. Since 1990, about 220,000 physicians have been named in the National Practitioner Databank (www.npdb-hipdb.hrsa.gov)?this was launched in 1990 and any physician who settles a case or receives a judgment against him or her or monies paid will be listed in the databank; there are now 700,000 physicians.

So I thought perhaps there would be a way to protect physicians if we had the ability to countersue. If someone comes after you, you can use the exact same system to respond; instead of just a defense, you can actually provide an offense. And that's how we launched in 2002, and now we cover about 1500 physicians across the country.

What is a frivolous lawsuit?

The way we define it, a frivolous lawsuit is based on frivolous testimony that is not what a majority or respectable minority would utter.

What should a physician do once a lawsuit has been filed?

If you are sued, you need to notify your malpractice carrier and have an attorney assigned to the case. I would highly recommend that nothing be done to the record.

It is not uncommon for the physician to feel that the record might not accurately reflect what happened with that particular patient, but if anything is added to the record and if any changes are made, you'll have a hard time digging yourself out of that hole. Your credibility will be on the line. Even though it's well intended and may be useful to explain better what might have happened, it will be perceived as an attempt to cover up, and that is bad.

How involved should physicians be in the process?

1. The more actively involved you are, the more likely you will see a better outcome. As good as some attorneys are, they will never have as much medical information as the doctor. The doctor's role is to first explain the general aspects of the case and then the doctor's specific role in the case to the attorney.

2. The doctor really needs to play a role in terms of finding defense expert witnesses, that is, to get a third party who is trusted and reputable in the field to evaluate the record; he has to try and buttress the argument of whether there was or was not negligence.

3. This third point is what physicians often find difficult: When the plaintiff's experts are deposed, the doctor should physically show up. You should be in the room. I wouldn't just sit back and hope the attorney gets it right on his/her own.

How long is the process?

As physicians, we're used to things happening rapidly. The natural lifespan of a medical malpractice suit is probably 2 to 3 years, sometimes as long as 5, 6, or 7 years. It really depends on how many people have been named in the case and the merits of the case.

What are the biggest risks for primary care physicians?

Primary care doesn't have the same obvious risk for lawsuits as some specialties, but it turns out they do get sued frequently. It's just that the severity of the lawsuits isn't as great.

It's not uncommon for neurosurgeons, for example, when sued, to be hit with a $1-million or more judgment; whereas a primary care physician might be sued with the same frequency, the judgment size might be a bit lower. The clear cases where they get hit are:

? Missing a diagnosis

? Not referring in a timely fashion

? Allowing something to get dropped through the cracks, such as an x-ray or a lab test?something that pointed to greater problems and could have been attended to earlier

? Being named in a shotgun suit (ie, one that targets multiple physicians).

What are the risks associated with new technology?

New technology carries benefits and risks. You normally hear about all the benefits of new technology, but it takes time to accumulate a better understanding of the risks. Physicians who are early adopters and jump in sooner rather than later should buttress their position by getting formal training and document the fact that they've taken formal training. We like to say "pioneers take arrows," and if you're the first around and something happens, somebody's going to shoot at you.

Why is documentation so important?

I can't say it enough, and I say it as an individual who as a former practitioner knows that it's tough to spend the amount of time you want and need to document everything and still do good patient care.

Nevertheless, it needs to be done, and it's important to be able to convey not only what you did but also, more important, if you didn't do something. If you consciously chose not to go down a particular path, document why you did, or didn't, do that.

The reason I bring it up is that there's this saying, "If it wasn't documented, it wasn't done." Let's assume for the moment that a particular lab test or technique is done frequently after a heart attack, for example, and you've looked at this, and you've said, "I don't believe this is going to help my patient, so I'm not going to order this particular test." If you do nothing and don't document your conscious decision not to do that test, it will be assumed it never even entered your mind. And if you really did think about it, it is important to explain your line of reasoning, as if you're explaining it to the jury.

How does Medical Justice help once a lawsuit has been filed?

We play 3 roles. The first is to try to keep the doctor from being sued in the first place. Once the physician has been sued, our goal is to send notification to the plaintiff's side that the doctor has up to $100,000 at his disposal to file countersuits and counterclaims? the goal of which is to get them to think twice.

Our goal is to make sure that the opposite side does the appropriate job. We're not trying to prevent litigation from occurring at all, we're just trying to make sure that they don't cast such a wide net that it creates unintended consequences for people who had no culpability.

What is Medical Justice? Run by physicians for physicians, Medical Justice Services can be a supplement to conventional malpractice policies or a stand-alone service. Its primary goal is to deter the filing of meritless suits.

Costs range from $625 to $1990 annually per physician, depending on which state the physician is in and his/her practice specialty.

Specialties such as internal medicine, family practice, and pediatrics tend to be toward the lower end of the cost scale. In addition, there are discounts ranging from 5% to 25%, depending on the number of physicians in the practice.

To contact Medical Justice, visit www.medicaljustice.com.