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25-Steering clear
of malpractise threats – how to avoid legal
battles
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"A lawyer
with his briefcase can steal more than a hundred
men with guns. Don Corleone, in The Godfather. "
- Mario Puzo. |
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A number of studies have shown that being sued is one
of the most stressful experiences a doctor can undergo.
Since most doctors think of themselves as being caring
and competent, being sued can be a blow to their ego
and self-esteem. It is not an experience that most doctors
are prepared for, not are they taught how to cope with
it. However, being sued is one of the professional hazards
of practising medicine in today's day and age, and it
is going to become an experience doctors are going to
have to increasingly face.
There are many reasons for this. Patients are getting
increasingly disenchanted with the medical profession
as a whole, and society now perceives most doctors as
being mercenary and uncaring. Patients often have unrealistic
expectations and they expect the magic of modern technology
to be able to cure all their ills. Also, India is likely
to follow the American route, where medical malpractice
means big bucks for lawyers, and we are likely to see
a new breed of ambulance chasers spring up in India
as the world continues to shrink.
Remember that often a lawsuit is triggered by a
simple misunderstanding: an unavoidable bad outcome
or a patient's anger, rather than actual malpractice;
the mere fact that you are being sued does not necessarily
mean that you have been negligent or that you are
a bad doctor. Many doctors resent that they are
being 'penalized' for one single error, believing
that fact that they have taken good care of hundreds
of patients for years on end counts for nothing
is unfair. Others are concerned about the impact
the suit can have on their practice if the media
gets wind of it.
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Doctors are usually independent individuals, who are
used to doing things for themselves. Many are uncomfortable
with the idea of having their actions challenged and
their motives questioned; especially when this is done
in public, by lawyers who they feel do not understand
and cannot appreciate the pressures and intricacies
of clinical problems and medical practice.
The first suggestion of trouble is a written complaint,
usually sent by the patient's lawyer. Remember that
this doesn't necessarily mean you're being sued; it
simply notifies you that a lawyer is reviewing a patient's
case and may ask you to provide copies of his records.
The first thing you should do is notify the insurance
company that provides you with professional indemnity
coverage. Most companies require you to do this within
a specified time as a condition of coverage. Then, send
your own lawyer a copy of the complaint.
Just because you are being sued for malpractice does
not mean you are a bad doctor ! Remember that the vast
majority of malpractice actions end in a victory for
the doctor. In order to get a damage award in a malpractice
action, the patient has to prove 4 elements:
1. Duty: The patient must prove that the clinician owed
the patient a duty of care.
2. Breach of standard of care: The patient must prove
the clinician failed to act as a reasonably prudent
clinician of similar type would have acted, under the
same circumstances.
3. Injury: The patient prove that he sustained an injury.
4. Proximal cause: The patient must prove that the
clinician's breach of the standard of care caused
the patient’s injury.
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If you don’t remember the patient or what he came
in for, study the complaint, then carefully examine
your medical records. If, even then, after racking your
brains, you still can't recall the encounter, don't
worry: the patient's lawyer will have to provide you
with more specifics if he decides to pursue the complaint
further. Do tell your spouse about it: a supportive
spouse will get you through the rough times ahead. However,
tell your spouse not to mention the complaint to anyone
else. Don't discuss the incident with your colleagues.
Getting confidential advise from a respected senior
colleague can be helpful; use this person as a sounding
board. If anyone, whether a nurse or a reporter, asks
you about it, say that your lawyer has told you not
to say anything.
Being sued can be a long drawn out and painful process.
Not only does it eat into your time, but also saps your
energy and monopolizes your attention, as you try to
defend yourself. It also extracts a huge emotional toll,
and many doctors when hit with a lawsuit go through
a process of five classic phases. The first response
is one of Denial: I am a good doctor; this can't be
happening to me! The next stage is one of Anger: how
dare the patient sue me when I have done my best for
him? Doctors will often vent their anger on family-members,
their staff, and even other patients. The next stage
is one of Bargaining, where the doctor pleads with God
to, 'let him off the hook this time,' and promises never
to err again! This is followed by Depression. Many doctors
start doubting their competence and professional ability,
and wonder if they should just stop practicing medicine
altogether. The final stage is one of Acceptance, when
the doctor comes to terms with the fact that being sued
is simply one of the professional hazards of practising
medicine in today's day and age, that it is not a reflection
on his personal worth, and learns to get on with his
life. Being prepared for the emotional havoc this can
play with your life can help you to cope better: don't
try to minimize the impact the suit has on you and your
feelings by pretending it's of no consequence !
Dr Bernie Siegel once said to a group of doctors,
“ There are three words that will keep you
from ever being sued for malpractise - Love your
patients”. This is advise which will always
stand you in good stead !
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