President's Page

President's Page
August 2006

Medical Liability—You can be sued
Tort reform is not the end of frivolous lawsuits

by David M. Bookout, MD
2006 DCMS President

Since tort reform has taken effect in Texas, the number of malpractice suits filed in Texas has significantly decreased. We cannot be less diligent and allow erosion of these gains. The impact of a lawsuit is widespread and lasting. Recently I reviewed several depositions in a case, in which I am not involved, but may be deposed. In doing so, many bad memories were revived. I could read only so far without becoming angry and having to take a break. It seemed that the truth about what happened in the case was unimportant. The objective was to get the deposee to make an incriminating statement. Words and statements were twisted. The witness was cajoled, intimidated, and threatened. As they say on the PGA tour, “These guys are good.” They can twist our statements and suddenly we misspeak, and it is a “Gotcha.”

A large proportion of physicians will be sued at some time during their career. Some specialties are at greater risk than others, but the individual impact is similar for one and all. The statement, “Doctor, there is an officer from the court who needs to see you,” is one you will never forget. Many times when there are bad outcomes, you know it’s only a matter of time ‘til you’ll hear that announcement. The cases you don’t anticipate may hurt more.

Much has been written about defensive medicine and its impact on the cost of medical care. Those who deny this relationship are not in the active practice of clinical medicine. An example in obstetrics would be a patient who suspects she is in labor prematurely. If this had occurred 20 years ago, she would have had a vaginal examination to check for cervical dilation, a nurse would have listened to the baby’s heart beat, and the patient would have been observed for an hour. The patient would have been sent home if she were not in labor. Today, the same patient probably would have a fetal fibronectin to exclude premature labor, electronic fetal monitoring with a nonstress test, and possibly a consult from a perinatologist to sonographically confirm the fetal well being. That’s OB--what about the Emergency Department and a patient with a headache? Do you think he’d get only a quick check and a few aspirin, and be sent home? Yes, defensive medicine is thriving.

Other aspects of malpractice involve recruiting good students into medicine, especially into the high-risk specialties. A 2003 survey of 360 medical residents in Pennsylvania found that 81% view every patient as a potential malpractice case, 67% are less eager to practice than before, 33% are less candid with patients, and 28% regret choosing medicine as a career. Many states without tort reform have difficulty providing care because physicians have sought better practice environments. According to a recent New England Journal of Medicine article (2006:354:2004-33), claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over error and payment of those errors. The overhead costs of malpractice litigation are exorbitant.

The costs are exorbitant, and not just monetarily. When a suit occurs, how does a physician inform family, partners, and friends? One’s spouse can be an important source of support. Although the spouse cannot discuss the facts of the case, he can assist in informing others who need to know. Explanations are important because a defendant, mom, or dad may not be as understanding about personal issues when preoccupied by the suit. In the midst of a lawsuit, the physician feels as if there is a loss of control of one’s life, and the entire family feels the stress. One other stress factor with a suit is the time from notification to finalization of the outcome. Although tort reform has shortened this time significantly, it usually exceeds two years. Attorneys spend this time building the case or the defense. The physician spends it in a constant state of stress.

The formal lawsuit frequently adds to the anger and distress. Although the physician’s attorney will try to convince him that the suit is legal language and nothing personal, it certainly seems personal to the physician. We try to set high standards and always strive for patient safety and quality medicine. How can one ignore demeaning statements such as “willful and wanton disregard for life and safety”?

The scars, regardless of the outcome, take years to fade. To cope one must utilize all available support, including our family, friends, attorney, and faith. Life does not end with a lawsuit, but the experience alters those closest to it, and often causes life to take a new direction.

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