Chapter 25: Steering clear of malpractise threats – how to avoid legal battles
|"A lawyer with his briefcase can steal more than a hundred men with guns. Don Corleone, in The Godfather. "
- Mario Puzo.
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 todays 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 patients 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.
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 patients lawyer. Remember that this doesnt necessarily mean youre being sued; it simply notifies you that a lawyer is reviewing a patients 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 clinicians breach of the standard of care caused the patient’s injury.
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 cant recall the encounter, dont worry: the patients 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. Dont 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 cant 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 todays 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: dont try to minimize the impact the suit has on you and your feelings by pretending its 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 !